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Case 0:08-md-01916-KAM Document 1915 Entered on FLSD Docket 05/14/2018 Page 1 of 8

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

Does 1-976 v. CBI (10-80652-CIV-MARRA)


______________________________________________/

Plaintiffs' Motion to Compel Deposition of Rule 30(b)(6)


Witness with Knowledge of Chiquita's Contacts with the AUC

Pursuant to Rule 37 of the Federal Rules of Civil Procedure, Plaintiffs Does 1-976 hereby

move the Court for an Order to Compel Defendant Chiquita Brands, International, Inc. to make

available a Rule 30(b)(6) witness who can testify on behalf of the corporation about Chiquita's

contacts with the Autodefensas Unidas de Colombia ("AUC").

Background

Plaintiff first served a Rule 30(b)(6) Notice of Deposition on Defendant on March 1, 2018.

See Exhibit 1, attached hereto. In Defendant's Joint Status Conference Statement, DE 1827, and

in subsequent email correspondence, see e.g. Exhibit 2, attached hereto, the Defendant has taken

the position that it will make one Rule 30(b)(6) witness available to all plaintiffs' counsel, who

will testify about a broad range of subjects. Chiquita wants to conduct this deposition on either

June 27 or 28, 2018. Id.

Neither Chiquita nor the other plaintiffs' counsel would provide me with a copy of the

notice for this Rule 30(b)(6) witness, or disclosed the subjects about which the witness will testify.

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In the Joint Status Conference Statement, Chiquita stated that the witness would testify about "a

variety of topics, ranging from corporate structure and accounting practices to payments to the

AUC and the smuggling of guns and drugs." See Joint Status Conference Statement of Defendant

Chiquita Brands, DE 1827. I argued against using one witness to cover all of these subjects in my

Response to the Joint Status Conference Statement. DE 1828 at 4-6.

In addition to not knowing the details of the subject matter, there is no agreement on how

this witness' time would be divided among plaintiffs' counsel. For reasons I still don't understand,

the other plaintiffs' counsel want to exclude me from participating in discovery, requiring the

Court's intervention to allow me to participate in the depositions of AUC witnesses Raul Hasbun,

Herbert Veloza Garcia, and Irving Bernal. DE 1729, 1857, 1883. If the Court compels the

Defendant to produce a separate Rule 30(b)(6) witness regarding the narrow issue of Chiquita's

contacts with the AUC, I expect to be able to complete the deposition by telephone in a couple of

hours, and offered to share this witness' time with the other plaintiffs counsel if they want. The

other plaintiffs' counsel ignored the offer and continue trying to schedule a general purpose Rule

30(b)(6) deposition on their own.

I am also concerned that Chiquita will provide a witness who is unable to answer any

questions about this subject, as occured in the deposition of John Ordman in the National Union

Fire Ins. case on March 13, 2009, in Case No. A08934 in the Court of Common Pleas in Hamilton

Co, Ohio. In that deposition, Mr. Ordman repeatedly claimed to have no knowledge of this subject.

See Exhibit 3, attached hereto, at 85-87 and 224-227. The payments to different illegal groups

were color coded,1 but Mr. Ordman couldn't identify which groups corresponded to which codes,

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These documents were only produced in black and white. In advance of this deposition, Chiquita
should reproduce these documents in color. One such document is attached hereto as Exhibit 4,
which was released to Michael Evans of the National Security Archive via FOIA. Without
translating the entire document, the second column of the charts contains words like verde (green),
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so it was impossible to tell whether the payments were to the FARC, AUC or another group.

Although Chiquita portrays a 1996 meeting among Carlos Castano, Raul Hasbun, Charles Keiser,

and Reinaldo Escobar de la Hoz as "the extorsion threat" that led to their payments, according to

witnesses Raul Hasbun and Herbert Veloza Garcia, Chiquita paid the AUC in cash for several

years before the system of convivir front companies was established. In addition, there are more

than 500 plaintiffs suing Chiquita for murders occuring between 1995 and 1996. The factual

proffer in the criminal case doesn't go into the details of these payments, although Chiquita

generally admits paying illegal groups before 1997. I am the only attorney who took cases from

1995-1996, and am the only one who needs to prove the payments.

Chiquita should designate a Colombian employee, such as a general manager or security

director of Banadex, who were directly involved in the payments. Banadex employees Victor

Buitrago, Jose Luis Valverde, Alvaro Acevedo, Juan Alvarado or Renee Osorio would all be better

witnesses. The witness doesn't have to be Chiquita's employee - Mr. Ordman retired many years

ago.

ARGUMENT

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the

subject matter of the pending action and reasonably calculated to lead to discovery of admissible

evidence. Fed. R. Civ. P. 26(b)(1). The scope of relevant discovery under Rule 26 is broad.

Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 695 (S.D. Fla. 2007). "[D]iscovery should

ordinarily be allowed unless it is clear that the information sought has no possible bearing on the

rojo (red), gris (grey), cafe (brown) and azul (blue), which are codes for the different groups that
were paid. Marginalia indicate that the blue payments were to the ELN, the Ejercito de Liberacion
Nacional, a left-wing guerrilla group. Mr. Ordman was designated as a Rule 30(b)(6) witness in
the Julin/Sparrow/Pescatore cases, but it doesn't appear that a transcript of the deposition was
produced in discovery.
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claims and defenses of the parties or otherwise on the subject matter of the action.” Id. at 695-9.

The Federal Rules “strongly favor full discovery whenever possible.” Rivera v. 2K Clevelander,

LLC, No. 16-21437-CIV, 2017 WL 5496158, (S.D. Fla. Feb. 22, 2017) (citing Josendis v. Wall to

Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011).

Federal Rule of Civil Procedure 30(b)(6) allows a party to take the deposition of an

organization by identifying topics about which the party seeks information from the corporation.

The corporation must produce a witness who can fully answer questions about the properly noticed

topics. See Fed. R. Civ. P. 30(b)(6). A corporation is not relieved of its duty to designate a

corporate witness for the deposition simply because it has no current employees with personal

knowledge of the facts. Instead, the corporation is obligated to undertake a thorough investigation

of all available resources. U.S. v. Taylor, 166 FRD 356, 361 (M.D. N.C. 1996). If the corporation

is not prepared to take a position on contested issues, and refuses to do so at the deposition, it will

be precluded from later taking a position on that issue at trial. See W.R. Grace & Co. v. Viskase

Corp., No. 90 C 5383, 1991 WL 211647 (N.D. Ill. Oct. 15, 1991); Ierardi v. Lorillard, No. 90-cv-

7049, 1991 WL 158911 (E.D. Pa. Aug. 13, 1991).

If counsel are unable to comply with the notice, they can present a witness to testify about

the efforts undertaken to locate facts and information, and confirm that no information was

uncovered. The corporation may also move for a protective order to prevent the deposition from

proceeding. Either way, counsel must present evidence that its investigation was reasonable and

thorough. Kanaji v. Phila. Child Guidance Ctr. Of Children's Hosp., No. 00-937, U.S. Dist. 2001

LEXIS 8670 at *6 (E.D. Pa. June. 20, 2001) (party seeking to avoid deposition bears the burden

of showing that the information sought is not known or reasonably knowable).

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Courts have relied on the "reasonably available" language in Rule 30(b)(6) to determine

whether an investigation was thorough. Courts construe this language broadly to require a

corporation to review all available documents, interview former employees, and seek information

from third parties, if necessary, to develop the relevant facts to respond to the topics. U.S. v.

Taylor, 166 FRD 356, 361 (M.D. N.C. 1996); Kanaji at *6. Courts have been unwilling to relieve

the corporation's burden, even where the documents were voluminous. Calzaturficio S.C.A.R.P.A.

S.P.A. v. Fabiano Shoe Co., 201 F.R.D. 33, 37 (D. Mass. 2001); Prokosch v. Catalina Lighting,

Inc., 193 F.R.D. 633, 639 (D. Minn. 2000).

Courts have sanctioned parties where the designated representative is someone with no

knowledge and it's clear that others with knowledge could have been provided and were not. FDIC

v. Bucher, 116 FRD 196, 199 (ED Tenn. 1986) aff’d, 116 FRD 203 (1987) (corporation engaged

in “intransigent behavior,” where it withheld a key “six-part memorandum” from the designated

representative who was completely unprepared to discuss it where the employees who prepared

the memorandum were available to testify about it); Resolution Trust v. Southern, 985 F.2d 196,

196-198 (5th Cir. 1993) (sanctions were appropriate where the corporation possessed documents

clearly identifying an employee as having personal knowledge of the subject of the deposition, but

where it did not furnish those documents or designate the employee until after it had designated

two other employees “who possessed no knowledge relevant to the subject matters identified in

the Rule 30(b)(6) notice”). Corporate representative deposition responses of “I don’t know” or “I

don’t remember/recall” equate to a failure to appear, creating a duty to substitute someone who

does know or to the imposition of other sanctions. U.S. v. Taylor, 166 F.R.D. 356, 360-361

(M.D.N.C. 1996) (“do not know” responses equate to a failure to appear); Barron v. Caterpillar,

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168 FRD 175, 177 (E.D. Pa. 1996) (Rule 30 (b)(6) creates a duty to substitute - even if corporation

had a good faith belief that the witness could properly respond).

The responding party has an obligation to select more than one deponent if multiple

deponents are necessary to respond to all of the relevant areas of inquiry. U.S. v. M T Mortgage

Corporation, 235 F.R.D. 11 (D.D.C. 2006), citing Alexander v. Fed. Bureau of Investigation, 186

F.R.D. 137, 141 (D.D.C. 1998). See F.R.C.P. 30(b)(6) ("[T]he organization so named shall

designate one or more officers, directors, or managing agents, or other persons who consent to

testify on its behalf. ..." "The persons so designated shall testify as to matters known or reasonably

available to the organization.") (emphasis added); see Buycks-Roberson v. Citibank Fed. Sav.

Bank, 162 F.R.D. 338, 343 (N.D.Ill. 1995) ("Citibank seems to believe that it can satisfy Rule

30(b)(6) by producing a witness with only selected information to offer . . . The Federal Rules and

this Court do not countenance self-selecting discovery by either party."). The purpose of a Rule

30(b)(6) deposition is to get answers on the subject matter described with reasonable particularity

by the noticing party, not to simply get answers limited to what the deponent happens to know.

One of the purposes of Rule 30(b)(6) is to prevent "bandying," which is the name given to the

practice in which people are deposed in turn but each disclaims knowledge of facts that are clearly

known to persons in the organization and thereby to the organization itself. See F.R.C.P. 30(b)(6)

Advisory Committee Notes, 1970 Amendment.

Conclusion

For the foregoing reasons, the Court should compel Defendant Chiquita Brands

International, Inc. to supply a Rule 30(b)(6) witness with knowledge of Chiquita's contacts with

the AUC. Mr. Ordman has already shown that he is unable to serve in this role. The Court should

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also award undersigned counsel attorneys fees for bringing this motion, pursuant to Rule

37(a)(5)(A).

Respectfully submitted,

/s/ Paul Wolf


____________________
Paul Wolf, CO Bar 42107
Attorney for Plaintiffs
PO Box 46213
Denver CO 80201
(202) 431-6986
fax: n/a
paulwolf@yahoo.com

May 14, 2018

Certificate of Service

I hereby certify that I filed the foregoing document, and referenced exhibits and proposed
order, with the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which
will provide notice to all parties entitled to receive them.

/s/ Paul Wolf


________________
Paul Wolf

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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

Does 1-976 v. CBI (10-80652-CIV-MARRA)


______________________________________________/

Proposed Order

In consideration of Plaintiffs Motion to Compel Deposition of Rule 30(b)(6) Witness with

Knowledge of Chiquita's Contacts with the AUC, and all exhibits attached thereto, and all

Oppositions, Responses, and Replies, it is hereby:

ORDERED that Defendant Chiquita Brands International, Inc. shall provide a witness who

can testify on behalf of the corporation as to Defendant's contacts with the Autodefensas Unidas

de Colombia; and it is further

ORDERED that Defendant Chiquita Brands International, Inc. shall pay reasonable

attorneys fees to Plaintiffs' counsel for bringing the Motion to Compel.

Done this _______ day of ____________, 2018.

________________
U.S. District Judge