Collingsworth Dole Third Motion to Compel

Exhibit 3

FILED 2015 Dec-17 PM 08:16U.S. DISTRICT COURT

N.D. OF ALABAMA

Case 2:11-cv-03695-RDP-TMP Document 422-4 Filed 12/17/15 Page 1 of 16


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TABLE OF CONTENTS

Page

DEFENDANT DOLE FOOD COMPANY, INC’S THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND

THIRD PARTIES LISTED ON PLAINTIFFS’ PRIVILEGE LOG

I. INTRODUCTION .................................................................................................................... 1

II. PLAINTIFFS’ PAYMENT REQUESTS, OFFERS, NEGOTIATIONS AND CONTINUING MISREPRESENTATIONS ............................................................................ 2

A. Raul Hasbún Negotiations, New Aspects Revealed ..................................................... 3

B. The False “Expert” Retention Representations ............................................................. 4

C. Continuing Misrepresentations Regarding Witness Payments and Their Purpose .......................................................................................................................... 5

III. PRIVILEGE LOG ENTRIES INVOLVING THIRD PARTIES THAT CANNOT RECEIVE WORK PRODUCT PROTECTION ....................................................................... 7

IV. ARGUMENT ............................................................................................................................ 8

V. CONCLUSION ....................................................................................................................... 10


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TABLE OF AUTHORITIES

Page(s)

DEFENDANT DOLE FOOD COMPANY, INC’S THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND

THIRD PARTIES LISTED ON PLAINTIFFS’ PRIVILEGE LOG

Cases BP Alaska Expl., Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1254……………….. 8 Coito v. Superior Court (2012) 54 Cal.4th 480, 488 ………………………………………… 8 OXY Res. California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 891 ……………. 9 Statutes Code Civ. Proc. § 2018.030 subd. (a) ………………………………………………………... 8 Code Civ. Proc. § 2018.030 subd. (b) ……………………………………………………….. 9


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1 DEFENDANT DOLE FOOD COMPANY, INC’S THIRD MOTION TO COMPEL RE: PLAINTIFFS TO

PRODUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND THIRD PARTIES LISTED ON PLAINTIFFS’ PRIVILEGE LOG

I. INTRODUCTION

Dole Food files this motion to compel the production of documents from Plaintiffs’ privilege

log in advance of the depositions of Plaintiffs’ jailed, terrorist witnesses, which begin again on Janu-

ary 22, 2016. Separate from the entries related to Raul Hasbún that this Court addressed on an ex

parte basis in advance of Hasbún’s December 4 deposition, Plaintiffs have 196 more entries on their

privilege log described as: “Internal document related to offer of, request for, or prospective or actual

payment to current or former AUC member,” most of which do not identify a specific AUC member,

but others which identify Jose Gregorio Mangones Lugo, who will provide testimony on January 28.

(Appendix A.)1 Plaintiffs’ log also includes at least 332 communications that obviously involve third

parties to whom no privilege can extend, for example, entry 1206, a communication from Terry Col-

lingworth to [email protected]. (Appx. B.)2 Dole Food notified Plaintiffs of these issues on

November 24 and December 6. (Ex. 1, 2.) Plaintiffs have represented that they will amend these de-

scriptions and provide a more detailed log by December 24th. (Ex. 3.) Plaintiffs have refused, how-

ever, to produce (1.) the payment-related documents on the log consistent with the Court’s ruling on

the Hasbún ex parte application or (2.) their communications with third parties. In other words, de-

spite this Court’s prior rulings and the rapidly approaching depositions in Colombia, Plaintiffs are

refusing to produce “internal” documents that discuss, relate or refer to negotiations with witnesses

regarding offers, demands or payments and related documents. They are also withholding documents

by claiming “work product” protection to communications with third parties that cannot receive the

benefit of such protection. Consequently, Dole Food hereby requests that, consistent with its prior

order, the Court order Plaintiffs to produce the subject documents forthwith.

This Court has already held that documents concerning payments to witnesses “should be

produced since the court has determined that denial of discovery will unfairly prejudice the party

seeking discovery in preparing that party’s claim or defense or will result in injustice.” (Ex. 4.)

1 Appendix A is a true and correct copy of relevant entries from Plaintiffs’ privilege log pertaining to payment requests, offers, and/or negotiations, sorted chronologically. Plaintiffs have designated their privilege log as confidential pursuant to the Stipulated Protective Order and therefore, this Appendix has been filed under seal. 2 Appendix B is a true and correct copy of relevant entries from Plaintiffs’ privilege log pertaining to communications with third parties, sorted chronologically. Plaintiffs have designated their privilege log as confidential pursuant to the Stipulated Protective Order and therefore, this Appendix has been filed under seal.


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2 DEFENDANT DOLE FOOD COMPANY, INC’S THIRD MOTION TO COMPEL RE: PLAINTIFFS TO PRO-DUCE DOCUMENTS RELATING TO PAYMENT NEGOTIATIONS AND/OR AGREEMENTS AND THIRD

PARTIES LISTED ON PLAINTIFFS’ PRIVILEGE LOG

(emphasis added.) And yet Plaintiffs’ refusal to produce probative payment information continues.

Like the entries pertaining to Raul Hasbún addressed in Dole Food’s ex parte application, nearly all

of these documents appear to be email exchanges, and span the time period from August 2009 to May

2014. Plaintiffs’ description of these payment-related documents is both improperly vague, especial-

ly because of its repeated use of the term “or,” and fails to establish that any of these documents are

“work product.” Indeed, the description of the documents on the privilege log contains no reference

to any work product of any kind.

These documents are plainly central to Plaintiffs’ fabricated case and Dole Food’s defense

against the extreme accusations Plaintiffs have asserted here. Documents relating to Plaintiffs’ coun-

sel’s negotiations with, demands from, offers to, and any payments to, or contingent agreements with,

AUC members and/or their agents are crucial to Dole Food’s ability to meaningfully depose the re-

maining Letters Rogatory deponents in late January and February 2016. Because of the restrictive

procedures involved in these depositions, it is likely that these depositions will be Dole Food’s only

chance to cross-examine these AUC members, and their deposition testimony concerning Plaintiffs’

payments will be their only potential trial testimony.

In view of these exigencies, Dole Food respectfully requests that the Court grant this motion

to compel in full and either order Plaintiffs to produce the documents identified in Appendix A and

B, or conduct an in camera review.

II. PLAINTIFFS’ PAYMENT REQUESTS, OFFERS, NEGOTIATIONS AND CONTINUING MISREPRESENTATIONS

Plaintiffs’ history of payment requests, offers, and negotiations, to third-party witnesses in-

cluding Raul Hasbún, a former AUC terrorist, and Jarley Maya Sánchez, Hasbún’s counsel and agent,

are well documented in Dole Food’s ex parte application, Sanctions Motion, and previous Motions to

Compel. The documents that this Court ordered Plaintiffs to produce on December 2, however, re-

veal further insight into Plaintiffs’ coordinated scheme of payment requests, offers to and negotia-

tions with witnesses. The content of those documents underscores the need to require the production

of analogous documents that they continue to withhold. They also reveal further misrepresentations

to this Court and to other courts regarding witness payments.


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A. Raul Hasbún Negotiations, New Aspects Revealed

Prior to the production of payment related documents in connection with the Hasbún ex parte

application, Plaintiffs’ counsel told this Court that Dole Food was conflating their negotiations with

Raul Hasbún with those with Jarley Maya Sanchez. (Ex. 5 at 67:5-70:22.) The most recently pro-

duced documents confirm anew however that Maya Sanchez was, without question, acting on behalf

of Hasbún. They likewise confirm that it was Hasbún himself demanding upwards of $200,000 to

provide information and a statement to Plaintiffs’ counsel. Mr. Collingsworth himself authored e-

mails stating: “

(Ex. 6.) The new documents

also revealed for the first time that Ivan Otero was also involved in the Maya Sanchez/Hasbún nego-

tiations. For instance, Document 1585 is a June 15, 2012 memo from Lorraine Leete to Terry Col-

lingsworth, in which she describes her meeting with Ivan Otero. (Ex. 7.) It discusses a link between

Otero and the payment negotiations with Jarley Maya Sanchez and Raul Hasbún:

(Id.) Although Plaintiffs represented to this Court that they had made “full disclosure” of facts re-

garding their Hasbún negotiations, Mr. Otero’s involvement in negotiation conversations with Mr.

Maya Sanchez was never disclosed to this Court or to Dole Food. Moreover, although Plaintiffs’

continue to claim that no payments were made to Dole related witnesses, another of the recently pro-

duced documents states: (Ex. 8.)

When confronted with these e-mails, which document the negotiations between himself and

Plaintiffs’ counsel, Hasbún gave perjurious testimony at his December 4 deposition, claiming that he

had no knowledge of any negotiations and contending that he had never made any demands for

$200,000 or otherwise. (Ex. 9 at 173:8-174:13; 176:4-177:84; 182:5-145; 192:6-186.) Hasbún even 3 “Q: Did you tell Mr. Sanchez to tell Mr. Collingsworth that you wanted $200,000, plus a percentage of what the vic-tims would recover in this case to work with him? … A: No, that’s not the case.” 4 “Q: Did you tell Jarley Maya [Sanchez] to tell Mr. Collingsworth that you wanted $200,000 plus a percentage? A: No, no, no.” 5 “Q: Have you ever received any money from Ivan Otero? A: No. I don’t know who he is.” 6 “Q: Are you invoking your right against self-incrimination as to the discussion of any financial negotiations between yourself and Mr. Collingsworth? … A: Yes, I know that. And I do invoke that, but not because I want to talk. But be-


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rejected Mr. Collingsworth’s leading question regarding their supposed negotiations for him to serve

as an “expert,” a claim Plaintiffs’ counsel made at the October 20 hearing. (Id. at 108:15-109:8; Ex.

5 at 67:17-24 (“We have not hidden that there were discussions and negotiations for Mr. Hasbun to

be an expert in our case. . . . we have not failed to disclose . . . that there were, in fact, negotiaitons as

to whether he was going to be an expert, and an expert specifically on the structure of the AUC, fi-

nancing of the AUC.”)7 Hasbún further claimed that he had never discussed Dole Food with Plain-

tiffs’ counsel prior to the date of his deposition, again despite Conrad & Scherer confirming in inter-

nal documents that such discussions took place. (Ex. 9 at 119:19-22; see Dole’s Ex Parte App. at 4-5

(Nov. 25, 2015).)8 And when confronted with his 2008 Justice and Peace testimony, which predates

his first meeting with Mr. Collingsworth, Hasbún repeatedly exercised his right against self-

incrimination and refused to respond to direct questions regarding the accuracy of his prior testimony.

(Id. at 155:19-156:149; 207:22-208:510.) Though ultimately, despite uncreditable claims of meetings

with a nameless man who he allegedly believed represented Dole Food, when asked if Hasbún ever

saw any proof that this man represented Dole Food, he admitted: “No, I have no proof.” (Id. at

215:5-20.)

B. The False “Expert” Retention Representations

In the cases of both Raul Hasbún and Pedro José Diazgranados López, in an attempt to render

payments somehow legitimate, Plaintiffs’ counsel has repeatedly represented falsely to this Court that

they were negotiating with these witnesses to provide “expert” testimony. (See, e.g., Ex. 5 at 67:17-

24; see also Plfs’ Opp. to Dole’s Mot. Challenging Confidentiality Designation of Consulting Expert

(July 22, 2015).) The ex parte Hasbún production again shows that these representations were false.

Although the Hasbún negotiations are discussed in more detail in the new production, the word “ex- cause I’ve told you 10,000 times that hasn’t happened. I have not been offered anything, I’ve not received any, nothing of that.” 7 “Q [from Mr. Collingsworth]: Are you aware that I had discussions with Jarley Maya Sanchez, about hiring you as an expert witness? … A: I don’t know—I don’t have any knowledge that that they wanted to hire me for something of the matter.” 8 “Q: So you don’t recall talking to Mr. Collingsworth about Dole before today. Do I have that right? A: That’s correct.” 9 “Q: [I]s it your testimony that [] today the testimony you gave in [a 2008 Justice and Peace proceeding) was not truth-ful when you gave it? A: Counsel, I’m not going to answer that question. Q: Are you invoking your right against self-incrimination? A: Correct.” 10 “Q: Simply asking you if that [Justice and Peace] testimony was truthful when you gave it in 2008? A: No, I’m not going to answer, not that. Q: Are you [] invoking your right against self-incrimination? A: Yes.”


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pert” is never used. Likewise, Document 2693 is an early November 2010 email which confirms

what the California Court of Appeal and this Court have already held: Pedro José Diazgranados

López, referred to as “Pedro,” is a fact witness whom Plaintiffs paid substantial sums of money for

purportedly factual information and for a “sworn declaration.” (Ex. 6); Cal. Ct. App. Order Denying

Plfs’ Pet. for Writ of Mandate (July 24, 2015)).

C. Continuing Misrepresentations Regarding Witness Payments and Their Purpose

Throughout these proceedings, Plaintiffs’ counsel has consistently asserted that witness pay-

ments were made and/or discussed for some purpose other than for testimony. (Ex. 5 at 57:27-58:1

[“payments were being made for security for the families of these witnesses, not to pay the witnesses

directly for their testimony”]; Ex. 10 at 2-4 [arguing that security payments were “necessary and

proper” to five Drummond witnesses, a fact that was later discredited in Judge Proctor’s Order]; see

also Ex. 11 at 36:20-25.) The recently produced documents, however, expressly reference Hasbún

making demands (Ex. 12), and other witnesses, including one

referred to as “Yuca” or “Y,” refusing to sign a declaration until he receives payments,

of $2,200 monthly. (Ex. 7).

Equally shocking, it appears that Plaintiffs’ counsel may still be lying to this Court regarding

the number of AUC witnesses who Conrad & Scherer paid. The Drummond Court recently found

that their prior misrepresentations were made across multiple matters: “These representations [made

across all three cases] involve the same witnesses and conduct that [are] at issue in this case. . . .

Here, had Defendants revealed witness payments in either of these other cases [Dole or Wichmann],

the misrepresentations in this case would have also come to light.” (Ex 13 at 48.). The same is true

of their continuing misrepresentations.

Based on the Hasbún ex parte documents, it appears that Conrad & Scherer and Mr. Col-

lingsworth lied to both this Court and the Drummond Court when representing that they had corrected

their prior misrepresentation that only 3 witnesses had been paid. Specifically, Plaintiffs’ counsel

originally stated that only following witnesses has been paid (and that they were only relevant to the

Drummond matter): Jhon Jairo Esquivel Cuadrado (“El Tigre”), Alcides Manuel Mattos Tabares

(“El Samario”), and Jaime Maya Blanco. (Ex. 14.) Plaintiffs’ counsel belatedly corrected this mis-


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representation and admitted that 3 additional witnesses had been paid: Jairo Jesus Charris Castro (“El

Viejo Miguel”), Jose Gelvez Albarracin (“El Canoso”), Libra Duarte (“Paisa;” Halcon”). (Id.) With

this correction, Plaintiffs’ claimed that all witness payments in AUC matters had been disclosed. (Ex.

14; Ex. 11 at 109:20-110:2.) This representation appears to be false.

One of the witnesses against Drummond that Conrad & Scherer and Mr. Collingsworth

claimed has not received any “witness protective assistance” on a slide presented during the crime-

fraud hearing held by the Drummond court on September 1-3, 2015, was “Oscar David Perez Bertel

AKA ‘Yuca.’” (Ex. 14.) Contrary to this representation, Document 1585, which this Court ordered

produced from Plaintiffs’ privilege log, a June 15, 2012 memo from Lorraine Leete to Terry Col-

lingsworth, with the subject line, “6/15/2012 Meeting with Ivan Notes,” conveys that “Y” or “Yuca”

would not sign a declaration (Ex. 7.) Within

weeks of Leete sending Collingsworth this memo, Conrad & Scherer increased its monthly payments

to Ivan Otero by exactly $2,200, from $2,700 to $4,900. (Exs. 18, 19, 20.) Based on information

available to Dole Food, this $4,900 monthly payment to Otero appears to have continued through at

least May of 2014. (See Ex. 19.) Plaintiffs’ counsel lying to the Drummond court about witness

payments made through intermediaries is consistent with the original lies told about the other wit-

nesses they were paying through Otero.

As can be seen, the Hasbún documents that Plaintiffs attempted to withhold as work product

were probative on key issues, including witness tampering and bribery. By delaying their document

and log productions for well over a year after Dole Food propounded its discovery requests, and just

a few weeks before the Letters Rogatory depositions are set to begin again, Plaintiffs have left Dole

Food no choice but to file this motion to resolve this dispute prior to the depositions upcoming in

January and early February. Dole Food has met and conferred with Plaintiffs in good faith to resolve

these concerns without the Court’s intervention, but was unable to do so. See Champion Decl. ¶¶ 2-

4, Exs. 1-3. In order to prevent a fundamentally unfair proceeding, Plaintiffs should be ordered to

produce all the documents identified on their log that relate to offers, requests and potential or actual

payments to any AUC members, former members or other witnesses.


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III. PRIVILEGE LOG ENTRIES INVOLVING THIRD PARTIES THAT CANNOT RECEIVE WORK PRODUCT PROTECTION

Plaintiffs’ log also appears to contain hundreds of communications with third parties with

whom there can be no work product protection. A complete list of these entries appears at Appendix

B. Some of these entries reflect communications with government officials, journalists, agents for

these third-party paramilitary witnesses, and other third parties with whom there cannot be any claim

of confidentiality or privilege. For example, entry 4817 is a communication from Terry Col-

lingsworth to “[email protected]” which claims “work product” protection. (See

also entries 4817, 4818, 4821, 4822, 4968, 4969.) Cliff Stammerman appears to be a staff member at

the Congressional Liaison Division.11 These communications are unprotected and must be produced.

The same is true of communications involving Segundo Mercado-Llorens, who appears to be a lob-

byist12 (e.g., entries 4792, 4793, 4794, 4821, 4822, 4681, 4968, 4969), government officials including

Elizabeth Poteat, Paul Laymon, and Michael Taxay of the Department of Justice. (E.g., entries 1216,

1218, 1220, 1260, 3742-3745, 4832, 4833, 4897.) There are also numerous entries involving Ivan

Otero, an attorney for some of the third-party paramilitary witnesses—these cannot be protected.

(E.g., entries 2314, 2449, 2450, 2463, 2464, 2466, 2468, 2491, 2492, 2494, 2511, 2514, 3180; cf. Ex.

16.) Entries including 2123-2125 are correspondence with a journalist at the Miami Herald. None

of these entries can be privileged and these documents should be promptly produced.

There are many other entries for which Plaintiffs have not provided sufficient information to

evaluate their claim of work product protection. For instance, Plaintiffs provide no information to

permit Dole Food to evaluate their claim of work product protection over communications with per-

sons at Earth Rights (“earthrights.org”) (e.g., entries 94, 95, 1622-1625), the International Labor

Rights Fund (“Ilrf.org”) (e.g., entries 695, 1126, 1127, 1209, 1211, 1212, 1213), the United Steel

Workers (e.g., entries 1194-1197, 1203-1205), or individuals such as Genny Fox (e.g., entries 1523-

24), “Camila A. Romero” (e.g., entries 1157, 1164, 1165, 1174, 1211-1213),

“[email protected]” (see, e.g., entries 1094-1102), Katie Hoffman

11 See https://www.usaid.gov/who-we-are/organization/bureaus/bureau-legislative-and-public-affairs/congressional-liaison-division. 12 See https://www.linkedin.com/in/segundomercadollorens.


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([email protected]) (e.g., entry 1628), Emily Goldman ([email protected]) (e.g., en-

tries 1671-73), “[email protected]” (e.g., entries 1722, 1746, 1747, 1755, 3046), or

“[email protected],” (e.g., entries 1207 and 4834). Their log contains numerous other uniden-

tified individual and email addresses too numerous to mention here—the documents too should be

promptly produced.

IV. ARGUMENT

This Court has repeatedly held that the “witness pay issue” “has come to light” and “is ex-

tremely relevant” to the claims and defenses in this action. (Ex. 15 at 32:5-11; see also Ex. 16.)

Plaintiffs’ sole basis for withholding the payment negotiation and related documents at issue here is

an unfounded “work product” claim that, as the Court has repeatedly found, they are unable to sub-

stantiate in the circumstances presented. (Appx. A.) In California, work product is limited to “the

product of the attorney’s effort, research, and thought in the preparation of his client’s case” includ-

ing “the legal theories and plan of strategy developed by the attorney”—a category which would not

include negotiations to hire a key fact witness as an “expert,” payment demands from witnesses or

offers to make payments, or any payments actually made to the witness or his agent. (BP Alaska

Expl., Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1254 quoting McCoy, California Civil

Discovery: Work Product of Attorneys (1966) 18 Stan.L.Rev. 783, 797.)

It is Plaintiffs’ burden to substantiate any claim of work product, but Plaintiffs cannot do so.

Plaintiffs generically use the following description for 196 entries: “Internal document[s] related to

offer of, request for, or prospective or actual payment to current or former AUC member.” (Appx. A

(Plaintiffs identify nine of the entries and relating to Mangones and Salvatore Mancuso, but do not

otherwise even specify the AUC member to which they relate).) Plaintiffs do not describe these

payment requests, offers, or negotiation documents as containing work product, let alone “reflect[ing]

an attorney’s impressions, conclusions, opinions, or legal research or theories,” (Code Civ. Proc.

§ 2018.030 subd. (a).) These documents are thus either not protected at all or are at most entitled to

qualified protection. Moreover, not all “internal documents” are privileged, and the fact that payment

negotiations with AUC members are discussed in “internal documents” does not protect them from

discovery. (Coito v. Superior Court (2012) 54 Cal.4th 480, 488 [“[w]here relevant and non-


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privileged facts remain hidden in an attorney’s file and where production of those facts is essential to

the preparation of one’s case, discovery may be had.”].)

This Court has already held in response to Dole Food’s ex parte application that documents

concerning payments to witnesses “constitute qualified work product and should be produced

since the court has determined that denial of discovery will unfairly prejudice the party seeking

discovery in preparing that party’s claim or defense or will result in injustice.” (Ex. 4.) (em-

phasis added.) Plaintiffs’ privilege log descriptions in Appendix A are no different from the entries

that the Court ruled on pertaining to Raul Hasbún, which were generically described as: “Internal

document[s] related to offer of, request for, or prospective or actual payment to current or former

AUC member, and related to communication with Raul Hasbún.” Just like the Hasbún ex parte doc-

uments, because withholding the documents in Appendix A “will unfairly prejudice” Dole Food “in

preparing [its] defense” and “will result in an injustice,” the Court should order their production.

(Code Civ. Proc. § 2018.030 subd. (b) [defining qualified work product protection].)

The unfair prejudice to Dole Food is clear. Plaintiffs are now moving forward with the testi-

mony of the Letters Rogatory depositions in January and February 2016 and presumably intend to try

to offer these deponents’ testimony at trial. It is beyond question that Dole Food will be prejudiced if

it does not have the complete information on payment requests and/or negotiations in time to prepare

and use it during the deposition. In fact, the Court denied Dole Food’s motion for preclusion of Jose

Mangones Lugo’s testimony without prejudice based in part on Plaintiffs’ representation that “Dole

will have a full opportunity to cross-examine these witnesses at the upcoming letters rogatory hear-

ings,” but now Plaintiffs are withholding the very documents that would allow Dole Food to fully

cross-examine him at his deposition. (Ex. 17 at 7-8.) Plaintiffs’ repeated used of the phrase “internal

documents” does nothing to meet their burden of showing privilege. Plaintiffs’ records of the sub-

stance of their requests, offers, and negotiations with AUC members are likely the only source of this

information within the Court’s jurisdiction, and should be produced.

Furthermore, Plaintiffs have waived any privilege or work product protection by including

third parties on their communications. (OXY Res. California LLC v. Superior Court (2004) 115

Cal.App.4th 874, 891 [holding that disclosure to third party constitutes waiver, and “[a]n expectation



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