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Case 0:08-md-01916-KAM

Document 1498

Entered on FLSD Docket 07/08/2017

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This Document Relates To: ATS ACTIONS

Does 1-976 (10-cv-80652) Does 1-677 (11-cv-80404) Does 1-2146 (17-cv-80475)



Notice of Touhy Requests for Testimony of SA Christopher Taft, SA Theodore Schmitz, and Secretary Michael Chertoff

Notice is hereby given that today I sent requests for testimony, pursuant to United States

ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), to three federal agencies, so that three current or

former federal employees may testify in this case. Under Touhy, federal agencies may propagate

their own regulations for requests for evidence from current or former employees, in lieu of

sending Rule 45 subpeonas to the witnesses.

The three requested witnesses clearly have relevant evidence. According to a Department

of Justice Press Release, Department of Commerce Special Agent

Christopher Tafe and

Immigration and Customs Enforcement (ICE) Agent Theodore Schmitz were commended for their

work on the underlying criminal prosecution of Chiquita Brands. See Exhibit A attached hereto

at 3. These witnesses will explain the Defendant's complex payment schemes to the jury, and the

evidence used to secure the guilty plea.

The third witness, Michael Chertoff, ran the Criminal Division of the Department of Justice

in 2003, and in April 2003 met with Roderick Hills and other Chiquita representatives to discuss

Case 0:08-md-01916-KAM

Document 1498

Entered on FLSD Docket 07/08/2017

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Chiquita's AUC payments.

There is a factual dispute over whether the Department of Justice

indicated that they would look the other way or condone the payments, even though the DOJ

decided to prosecute Chiquita after this meeting.

Yesterday, undersigned counsel conferred with counsel for the defendants and the six other

plaintiff groups, but no one replied.

If other counsel want to make Touhy requests for other

witnesses, there should be no problem, since each request is independent of the others.


requests are being made early in the discovery phase, since each agency has its own procedures

and time table for determining whether to object to the testimony. Presuming one or more of these

agencies permit the depositions, undersigned counsel will again confer with plaintiffs and

defendants counsel as to who shall conduct and pay for the depositions. The Court has already set

forth the rules for this, see D.E. 865. Any parties wishing to partipate in the deposition will share

in the costs. Id. The plaintiffs' counsel will vote on who shall conduct the deposition, with each

"case" having one vote. Id. These details will be arranged once the agencies have stated whether

they object to the depositions.

According to the agencies various Touhy regulations, each request must be supported by a

declaration setting forth the scope and relevance of the requested testimony.

The three requests

and supporting declarations are attached hereto as Exhibit B. In addition, copies have been sent

to AUSA Jonathan Mathis, who prosecuted the criminal case, and to Channing Phillips, the current

Acting U.S. Attorney for the District of Columbia.

Respectfully submitted,

/s/ Paul Wolf

Paul Wolf, CO Bar #42107 Attorney for Plaintiffs PO Box 46213 Denver CO 80201

Case 0:08-md-01916-KAM

July 8, 2017

Document 1498

Entered on FLSD Docket 07/08/2017

(202) 431-6986 fax: n/a

Certificate of Service

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I hereby certify that on this 8th of July, 2017, I filed the foregoing Notice, along with its two Exhibits, using the Court's CM/ECF electronic case-filing system, which will send notices by email to all parties entitled to receive them.

/s/ Paul Wolf

Paul Wolf