Case 0:08-md-01916-KAM Document 2166 Entered on FLSD Docket 10/23/2018 Page 1 of 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (Ohio Action) (Does 1-2146)

__________________________________________/

Plaintiffs Motion to Reschedule the Colombian Depositions of

Raúl Emilio Hasbún Mendoza, Ludy Rivas Borja, and a Confidential Fact Witness.

Come now the Plaintiffs, represented by undersigned counsel, to move the Court for leave

to reschedule the depositions of Colombian paramilitary Raúl Emilio Hasbún Mendoza and two

other witnesses1 that had been scheduled for last week. Counsel believes this can be accomplished

with a phone call and would not require the issuance of another Letter of Request under the Hague

Convention. Counsel tried to confer with Chiquita on a number of issues, see Exhibit 1 attached

hereto, but was only able to ascertain Chiquita's position that the deposition should not occur since

1
Of these two witnesses, one is the legal heir of a deceased bellwether plaintiff (the Defendant has
disputed the phrase "substitute plaintiff" until the Court rules on her status) and a witness to an
incident cited by the Defendant when a dozen of their employees were taken off a bus and killed.
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the fact discovery cutoff date has passed. See Exhibit 2, attached hereto. The other plaintiffs'

counsel stated they took no position on this, see DE 2154, and didn't reply to my offer to confer.2

However, they appear interested in having the deposition go forward.

Good cause exists for the motion. Raul Hasbun is one of the most important witnesses in

the case. He was not only the AUC commander in charge of the Municipality of Apartadó, and a

participant in the the meeting with AUC leader Carlos Castaño and Charles Keiser. Perhaps more

important is the close business relationship between Chiquita and Unibán, a company owned by

Mr. Hasbun's family, and also his employer. Chiquita's relationship with this company goes back

to its first days in Urabá, when both Chiquita and Unibán relocated to Urabá from Santa Marta.

Raul Hasbun had a dual role, as the manager of one of Chiquita's primary banana suppliers, and as

the local commander of the AUC. He is familiar with the front companies, called convivires,

which funneled money to the AUC, and may have designed this system himself. He is an

irreplaceable witness, so the Court should allow him to testify.

Undersigned counsel and his assistant Lina Maria Delgado worked diligently to ensure not

a moment was lost from when the Court issued the Hague Request, to when it was awaiting some

decision by the Colombian government, until it was finally scheduled by the close of fact

discovery, on time.3 See Opposition to Chiquita's Emergency Motion, DE 2155, which recites the

details of our communications with the Colombian government. Both the Ministry of Exterior

Relations and the Commission of Justice and Peace processed the Request very quickly, and found

2
The other plaintiffs, represented by attorneys Marco Simons, James Green and Jack Scarola, still
want half of the plaintiffs' time to question this witness, and say they may want to participate in
depositions of the other two witnesses, who are both my clients. However, only Mr. Simons says
his group will respect the Court's Order, DE 1883, assigning the costs for the Hasbun deposition
seven ways.
3
We were also the first plaintiff group to appear for depositions in Fort Lauderdale, FL, on the
days noticed by the Defendant. Other bellwether plaintiffs took up to a year to appear.
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two court days for us with about a week's notice. Chiquita, on the other hand, raised its objections

to the deposition procedures at the very last minute, with no time for anyone to react. We only

cancelled the depositions because of the last-minute crisis created by Chiquita. Another factor to

consider is that we just agreed to Chiquita's request for a two-month extention to complete expert

witness reports.

It doesn't appear necessary for the Court to issue another Hague Convention Request.

Yesterday, counsel at Earthrights contacted the Commission of Justice and Peace ex parte and

learned that they could arrange for a Colombian judicial official to take the testimony without an

additional Hague Convention Request, but that this couldn't occur for about 3-4 months. See

Exhibit 2, attached hereto. This again demonstrates our success in arranging the deposition, albeit

without a judge, in a week's time.

Alternatively, the Court may consider relaxing the rules, by having a Colombian judicial

official swear-in the witness, but not preside over the rest of the deposition. The court reporter

could also administer the oath. It is common for parties in this situation stipulate to this. If time

is of the essense, we should be able to reschedule it again within a few weeks time, but without a

Colombian judge.

Although I couldn't get an opinion from any other litigants, our preference at this point

would be to wait for a Colombian judge. In addition to countering any arguments about the validity

of the testimony, I think it would make a different impression on the witness if the court that

sentenced him, and is to ensure that he complies with the terms of his plea agreement, presided

over it. There is a risk that the witness will refuse to testify or appear, which I think is reduced in

the court that sentenced him. Chiquita's objection in their emergency motion was that there was

no Colombian judge presiding over the depositions, so they would appear to agree. We might also

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ask whether the Commission of Justice and Peace could issue a formal notice, as did the First

Criminal Court of Itagui, in relation to depositions of AUC prisoners. I don't know why the

litigants for this Hague Request didn't receive similar notices, but presume it is either because a

Colombian judge wasn't taking the testimony, or because the witness isn't a prisoner. The

Colombian court did allow us to use it as the witness' notice address, and also notified the witness

about this deposition. According to Mr. Simons they are still very cooperative and don't require

another Hague Convention Request.

Conclusion

For the foregoing reasons, the Court should GRANT Plaintiffs Motion to reschedule the

three depositions in Colombia, which were cancelled at the last minute due to the Defendant's

objections.

Respectfully submittted,

/s/ Paul Wolf

_________________
Paul Wolf, DC Bar #480285
Counsel for Plaintiffs
PO Box 46213
Denver, CO 80201
(202) 431-6986
paulwolf@yahoo.com
Fax: n/a

October 23, 2018

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Certificate of Conferral

I hereby certify that I tried to confer with counsel for the defendant and for other plaintiff
groups, in emails filed as Exhibits 1 and 2 and several others subsequent to them. In particular I
wanted to know whether a Colombian judge had to preside over the depositions, or whether the
official could swear the witness and then leave, or whether the parties could stipulate that the court
reporter could administer the oath. Chiquita's only position is that the depositions should not occur.

/s/ Paul Wolf

_________________
Paul Wolf

Certificate of Service

I hereby certify that on this 23rd day of October, 2018, I filed the foregoing document with
the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will send
electronic notices to all persons entitled to receive them.

/s/ Paul Wolf

_________________
Paul Wolf

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Case 0:08-md-01916-KAM Document 2166 Entered on FLSD Docket 10/23/2018 Page 6 of 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (Ohio Action) (Does 1-2146)

__________________________________________/

Proposed Order

In consideration of Plaintiffs Motion to Reschedule the Colombian Depositions of Raúl

Emilio Hasbún Mendoza, Ludy Rivas Borja, and a Confidential Fact Witness, exhibits attached

thereto, and all responses, oppositions and replies, it it hereby

ORDERED Plaintiffs' request is granted. The Plaintiffs may contact the Colombian

Commission of Justice and Peace to reschedule the depositions, with a Colombian judicial official

administering the oaths and taking the testimony.

Done this ________ day of _________, 2018

___________________
U.S. District Judge