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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 08-01916-MD-MARRA/JOHNSON

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,

ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION

______________________________________/

This Document Relates To: ATS ACTIONS

Does 1-976 (10-cv-80652)

Does 1-677 (11-cv-80404)
______________________________________/

Plaintiffs' Motion for Issuance of a Letter of Request

Under the Hague Convention for Paramilitary Depositions

Pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in

Civil or Commercial Matters (Hague Convention), 28 U.S.C. 1781, the Plaintiffs in the above-

captioned ATS cases request the issuance of a Letter of Request for International Judicial Assistance

(Hague Convention Request) to take the video testimony of three witnesses in Colombia: Ral

Emilio Hasbn ("Hasbn"), Herbert Veloza Garca ("Veloza"),1 and Irving Bernal Giraldo

("Bernal"). These individuals are associated with the Autodefensas Unidas de Colombia, or AUC,

also known as "the paramilitaries." Their testimony is relevant to Chiquita's defense of duress, 2

and to proving the Defendant's mental state, whether the standard is negligence, or the knowledge

standard applicable to aiding and abetting under the Torture Victim Protection Act.3

1
Mr. Veloza's name is spelled in a variety of ways in the news media. Counsel is using the spelling
used by the U.S. Bureau of Prisons. Mr. Veloza is commonly known by his nickname, "H.H."
2
Even if the Court were to grant the Julin plaintiffs' Motion for Partial Summary Judgment on the
Defendant's Defense of Duress, D.E. 1323, the Plaintiffs would still have the burden to prove the
mental state elements of their claims.
3
Although Chiquita claims to be the victim of extortion, paramilitary commanders such as Hasbn
and Veloza have said they were defending the banana industry from guerrilla attacks. Their
testimony about their lengthy relationship with the Defendant is as relevant to proving the
corporation's mental state as is the testimony of one of Chiquita's employees.
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The proposed Letter of Request, following the model form set out in the Hague Evidence

Convention, is filed as Exhibit 1 to this Motion. A Spanish translation, made by undersigned

counsel, 4 is attached hereto as Exhibit 2.

Counsel conferred with counsel for the Defendants, who consent to the Motion. See

Exhibit 3 attached hereto. Counsel also conferred with Jack Scarola and Marco Simons. Mr.

Scarola responded that he not need to confer with me about taking depositions. 5 Id. at 1. After

reciting the relevant court filings, this Motion will argue why the depositions are needed, and some

rules the Court could establish to avoid disputes among counsel. Since the close of discovery is

fast approaching on April 2, 2018, the Hague Request should be sent soon.

FACTUAL SUMMARY

On April 7, 2015, the Court granted an Emergency Motion for expedited discovery

pursuant to Rule 26(d), inter alia, to take the depositions of three paramilitary witnesses in

4
The Defendant objects to the fact that I did not use a federally-certified translator to translate the
bellwether plaintiffs' Responses to Interrogatories and Requests for Production. However, the
Defendant did consent to my previous Motion for a Hague Convention Request, D.E. 1499, which
I also wrote in Spanish myself. I have appeared pro hac vice in legal proceedings in Colombia
and Peru and have written court filings in Spanish. I've lived in Apartad, Colombia a total of
about two years, and have spent years doing Spanish document review and translation to support
this case. I've worked for the Defendants' data vendor, Transperfect, one of the largest translation
companies in the country. In contrast, the Defendant's translator stated on the record in the first
deposition that no one told him this was a federal case, and he was not sure if he was allowed to
do it.
5
Neither Mr. Scarola, Mr. Simons, or any other plaintiffs' counsel sent me notice of the deposition
of paramilitary Jose Gregorio Mangones Lugo, which was set for October 22, 2015. See Email
Correspondence, D.E. 1160-2. Mr. Mangones apparently refused to appear to testify. Mr. Simons
notified me of this on August 29, 2016, ten months later. Simons claimed the delay was due to his
inability to understand correspondence sent to him by the Colombian Court, since it was in
Spanish. Id. at 2. However, I never received any notice of the deposition in the first place. This
witness has testified falsely in more than one case. See, e.g., excerpt from the "Mangones Script,"
D.E. 1113-7 at 2. ("Yes, along with Pedro Bonito [Ral Hasbn], I met with a Chiquita
representative in a coffee drying plant in Santa Marta.") This statement, most likely written by
Attorrney Terry Collingsworth, is a complete fabrication.
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Colombia: Jos Gregorio Mangonez Lugo, Jess Ignacio Roldn Prez, and Fredy Rendn

Herrera. These Plaintiffs did not join in the motion. The Court also allowed the Defendant

discovery into any payments to these witnesses. Id. Mr. Mangones apparently refused to testify.

For reasons unknown, the deposition of Mr. Rendn was never arranged. The only deposition that

occurred was that of Jess Ignacio Roldn Prez, on August 12, 2015. Roldn had no personal

knowledge relevant to any issue in this case.

Undersigned counsel made two prior Motions for Hague Convention Requests, both of

which were denied. On November 6, 2015, counsel for Defendant Chiquita Brands and for the

ATA Plaintiffs jointly moved the Court to issue a Hague Convention request to 15 Colombian

national and local agencies for documents related to the financing and extortive practices of the

Fuerzas Armadas Revolucionarias de Colombia, or FARC. D.E. 927. On November 8, 2015,

undersigned counsel moved the Court, on behalf of 254 victims of the FARC, to participate in

discovery sought by the ATA plaintiffs from the Colombian government. D.E. 928. The parties

held a telephonic conference with the Court to narrow the Request, and the Court granted the

amendment on December 28, 2015. D.E. 975. Fifteen Colombian agencies produced "no records"

responses. D.E. 1158.

On April 11, 2017, the Court issued its Global Order Setting Trial Dates and Discovery

Deadlines, which lifted the general stay of discovery that had been in place. D.E. 1361 On July

8, 2017, undersigned counsel, with the consent of the Defendant, moved the Court for a Hague

Convention request for any files of three Colombian government agencies which work with war

crimes victims, for his eight bellwether cases. D.E. 1499 The Court denied the request on

September 1, 2017, finding that the evidence was not needed and that the request was overbroad.

D.E. 1546. Counsel has not made any other discovery requests of the Defendants, and anticipates

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that this will be all of the discovery in Colombia from Colombia that will require any judicial

assistance, since the close of discovery is on April 2, 2018.

SUMMARY OF ARGUMENT

The Court should grant the Motion for a Hague Convention Request due the importance of

the requested testimony, the Defendant's consent to the Motion, and the fact that these witnesses

cannot travel to the U.S. Two are believed to be in prison, and the third, Ral Hasbn, was just

released from prison last year. Hasbn designed the secret financing system, which disguised

payments to the AUC as payments to legal convivir (civil defense) groups, and kept a ledger of the

payments from Banadex and others, which he disclosed to the Colombian authorities as part of his

cooperation agreement. Irving Bernal was present at the meeting between Mr. Hasbun, Chiquita

representative Charles Keiser, and others. He is expected to testify that no threats were made at

the meeting, and that the relationship between Chiquita and the AUC was entirely voluntary. Mr.

Veloza was the AUC's primary military commander in Urab, and says that part of his job was to

put down labor strikes in the banana sector. Both Veloza and Hasbun are familiar with the AUCs

military operations, and can put particular cases in the context of the AUC's campaign, as they

have done in the Colombian Comission of Justice and Peace. Mr. Veloza's testimony is also

relevant to the state-action issue in the TVPA claims, since he spent a lot of time inside the base

of the 17th Brigade of the Colombian army in Carepa, and apparently shared intelligence with

them on who to kill.

Although there are evident problems with witness tampering and bribery, the Plaintiffs

would be unfairly disadvantaged if they are left with only Chiquita's version of what happened in

the Chiquita-AUC meeting. As non-party witnesses, they cannot be compelled to travel to the

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United States, and would be unlikely to receive visas in any event, due to their affiliation with a

Specially Designated Terrorist Group.

ARGUMENT

Federal Rule of Civil Procedure 28 (b), governing the taking of depositions in a foreign

country, provides that a foreign deposition may be taken under a letter of request, which the

court may issue on appropriate terms after an application and notice of it. A letter of request is

a request by a domestic court to a foreign court to take evidence from a certain witness. Intel

Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 n. 1 (2004).

The United States and Colombia are parties to the Hague Evidence Convention, which

provides the mechanism for gathering evidence abroad through the issuance of a letter of request.

28 U.S.C. 1781. The Hague Evidence Convention is particularly appropriate where, as here, a

litigant seeks to depose a foreign non-party who is not subject to the courts in personam

jurisdiction. See In re Anschuetz & Co., GMbH, 754 F.2d 602, 615 (5th Cir. 1985); In re Urethane

Antitrust Litigation, 267 F.R.D. 361 (D. Kan. 2010), citing Newmarkets Partners, LLC v.

Oppenheim Jr. & Cie. S.C.A., 2009 WL 1447504 at *1 (S.D.N.Y. 2009); Abbott Labs v. Impax

Labs, Inc., 2004 WL 1622223 at *2 (D. Del. 2004); Restatement (Third) of Foreign Relations Law

of the United States 474(2).

A party seeking application of the Hague Evidence Convention procedures bears the

burden of persuading the court of the necessity, based on the specific facts and sovereign interests

involved. In re: Automotive Refinishing Paint Antitrust Litigation, 358 F.3d 288, 300 (3d Cir.

2004). A court must look to considerations of comity, the relative interests of the parties, including

the interest in avoiding abusive discovery, and the ease and efficiency of alternative formats for

discovery. Mandanes v. Mandanes, 199 F.R.D. 135 (S.D. N.Y. 2001), citing Societe Nationale

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Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S.

522, 545-546 (1987)

Here, there is no issue of comity because the Colombian government is firmly on the

side of preventing financial support to terrorist groups, as is the government of the U.S. This civil

case resulted from Chiquita's criminal prosecution. Colombian authorities have also investigated

the Defendants for the same conduct, although the outcome is unclear. There is no issue of abusive

discovery, or any alternative formats for taking depositions of prisoners in foreign countries. There

is no easier way to do this. The importance of the testimony is explained in the following section.

I. The plaintiffs need this testimony to prove their case.

A. Ral Emilio Hasbn was the commander of the Arlex Hurtado Front of the Bloque

Bananero (banana block) of the AUC, which operated in the vicinity of Apartad, Turbo and

Chigorod, at the center of the banana industry in the Urab region of Colombia. He managed his

family's banana-exporting business, Unibn, which has always been Chiquita's main business

partner in Colombia, and remains the largest exporter of bananas in Urab. When Chiquita made

the decision to leave Colombia around 2005, it merely pushed more legal liability onto its

Colombian business partner, which is coincidentally run by a top commander of the AUC. It's no

coincidence that scores of bodies of the decedents in this case were found buried on Unibn's

farms.

After paying extorsion to the FARC for years, Hasbn joined with the Castao brothers

to expand the AUC to Urab to drive out the guerrillas. Hasbn was publicly known as a

businessman, but his secret role as an AUC commander was not well-known. Hasbn not only

met with Charles Keiser to cement the relationship between Chiquita and the AUC; he also

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designed the system of front companies to funnel money to the paramilitaries, which meshed with

Chiquita's efforts to disguise the payments as legitimate security expenses.

Hasbn completed his eight-year sentence a year ago, and has testified many times about

his role in the AUC. He was required to do so by the terms of his cooperation agreement. Hasbn

was deposed by Attorney Terry Collingsworth in Perez v. Dole, Case #BC412620 (LA County

Superior Court), a case which was dismissed when another witness, Adolfo Enrique Guevara

Cantillo, complained about Attorney Ivan Otero's attempts to bribe him. Collingsworth says he

negotiated a payment of about $150,000 to Hasbn, to hire Hasbn as either an expert witness or

an investigator, and produced an unsigned agreement in discovery. The witness bribery is

unfortunate, but Hasbn remains a crucial witness in the case.

B. Herbert Veloza Garcia, aka "H.H." was the military commander of the other half

of the Bloque Bananero, called the Turbo Front (Frente Turbo). Although Veloza is not known to

have met with any Chiquita employees, and didn't participate in making the agreement with them,

he has testified and spoken publicly about the financing of his block by Chiquita and other

companies. Veloza's testimony in the Comission of Justice and Peace spanned many months. He

testified about more than 3,000 murders committed by people under his command.

Veloza worked with General Rito del Rio Alejo, and could come and go as he pleased on

the base of the notorious 17th Brigade in Carepa. 6 Like Hasbn, Veloza saw himself as providing

security for the people who paid him, whom he feels are the ones truly responsible. This is the

perspective that is lost if the paramilitaries don't testify: the army was incapable of protecting

anyone, so the business owners banded together in self-defense, voluntarily, and willingly

6
General Rito del Rio Alejo is in prison for murdering numerous innocent people, dressing them
in camoflage, and using them to meet his quota of dead guerrillas in the so-called "false positives"
scandal. He's in a military prison and is unlikely to cooperate.
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supported the AUC. Veloza has also spoken to the news media about his role in breaking up

banana worker strikes. I met with this witness approximately eight years ago. At that time, he

was willing to testify.

C. Irving Jorge Bernal Giraldo was a banana company owner, and a member of the

board of directors of Augura, the banana industry association in Uraba. Bernal arranged the

meeting between Chiquita employee Charles Keiser, Banadex attorney Reinaldo Escobar, and

AUC commanders Ral Hasbn and Carlos Castao. His testimony is needed to challenge

Chiquita's assertion that at this meeting, Carlos Castao conveyed an unspoken threat. This

meeting established the agreement between Chiquita and the AUC, which is at issue in the

conspiracy claims and generally relevant to Chiquita's mental state.

As the owner of another banana company, Mr. Bernal was similarly situated to the

Defendant in this case. However, by arranging the meeting between Keiser and Castao, he was

either assisting the AUC in making an extortion threat, or helping them find supporters. Bernal

can't claim to be an innocent victim, as Chiquita's employees try to do. If he was an innocent

victim of extorsion, then what was he doing recruiting other victims? Bernal was recently

convicted of forced-displacement, a war crime, in connection with the AUC's campaign to acquire

properties in the Urab region. He was an associate of Vicente Castao, (brother of Carlos and

co-founder of the AUC), and is believed to be in prison.

Bernal could be important for another reason as well. As far as I know, he was not tainted

by the other plaintiffs' counsel in this case. Hasbn is problematic because he opens the door to

calling Terry Collingsworth as a rebuttal witness. This would expose the jury to evidence of

witness bribery, witness tampering, money laundering, and a criminal conspiracy with the same

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terrorist organization that killed the victims who are now suing Chiquita. This prejudicial effect

may outweigh any benefit from the most important witness in the case. 7

II. The Plaintiffs need the Court's help to resolve the impasse with other plaintiffs'
counsel.

On August 3, 2015, the Court issued an Order setting forth details of how the depositions

of Colombian paramilitaries Jose Gregorio Mangones Lugo, Jess Ignacio Roldn, and Fredy

Rendn Herrera should be conducted. D.E. 865. For those depositions, the Court ordered that

Plaintiffs shall designate no more than one counsel per witness to conduct the examinations
of each witness for which the Court has issued letters of request, and Defendants shall
designate no more than one counsel per witness to conduct cross-examinations. In the
event of a dispute among Plaintiffs and Defendants regarding the designation of counsel,
the designation of the majority of counsel shall control. For the purpose of determining a
majority, all counsel representing the same client or set of clients shall be given one vote
collectively, and counsel shall not gain additional votes if they represent clients in multiple
cases. Any discussions within Plaintiffs counsel or Defendants counsel regarding
preparations for these examinations, or other issues of joint coordination in this MDL
proceeding, shall proceed under an understanding of mutual confidentiality except where
consent to disclose to other parties has been given or a court has ordered disclosure.
Counsel who wish to participate in the examinations shall share in the joint costs of the
examinations.

Order, D.E. 865 at 1-2. In keeping with this Order, and Local Rule 7.1(a)(3), I conferred with

plaintiffs' counsel Jack Scarola and Marco Simons, as well as counsel for the Defendant, to see if

we could file a joint Hague Request including these three witnesses, 8 and any others. See Exhibit

3, attached hereto. Chiquita consented to the motion and does not appear to seek any other

7
Mr. Collingsworth is Chiquita's most valuable witness. Nothing could hurt the plaintiffs more
than what Collingsworth has already done - bribing the plaintiffs' most important witness and
getting caught. Collingsworth cannot be a witness in this case and litigate it at the same time.
Conrad & Scherer should step up and start representing these plaintiffs, or allow me to represent
the first 144. Collingsworth should withdraw from the representation so the Court doesn't have to
disqualify him. Conrad & Scherer no longer put their name on any of Collingsworth's court filings,
and are awaiting the outcome of a motion to put them into receivership in Broward County Circuit
Court. C&S are sued by their client Douglas Von Allmen, who is also a witness in the Drummond
litigation, and apparently the principal financier of the RICO conspiracy.
8
The email also refers to a fourth witness, who was removed in order to simplify the request.
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discovery in Colombia. Mr. Scarola rejected my offer to work cooperatively on a joint motion,

and appears to oppose the motion. Id.

While Mr. Scarola takes the position that taking depositions is part of a confidential

litigation strategy, id., the reality is that the Hague Request will be filed as a public document.

Witnesses must eventually be disclosed. The proposal outlined in my email, see Exhibit 3, is

precisely what the Court ordered. Any counsel wishing to participate in the depositions can share

in the cost. If other counsel are not interested in these witnesses, they don't have to pay. I also

state in the email that I will not fight with anyone else who wants to do these depositions. 9 I only

want to ensure that the evidence is obtained before the close of discovery on April 2nd. Mr.

Scarola's agenda appears to be to prevent me from obtaining any discovery. Yet there are only

four months left before the close of discovery, and no progress has been made.

If the Court grants the Motion, I promise to provide counsel for the Defendants and other

Plaintiffs with copies of any correspondence I receive from any Colombian court, including

providing notice of any depositions. The Plaintiffs need the Court's help with these issues so the

depositions can move ahead.

Conclusion

For the foregoing reasons, the Court should GRANT Plaintiff's motion and issue the Hague

Convention Request to take these three depositions by video in Colombia.

Respectfully submitted,

/s/ Paul Wolf

______________________
Paul Wolf, CO Bar #42107
Attorney for Plaintiffs
PO Box 46213
Denver, CO 80203
9
With one caveat, which is that neither Mr. Collingsworth nor Conrad & Scherer should be
involved in these depositions, for the reasons stated in the email. See Exhibit 3, attached hereto.
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(202) 431-6986
paulwolf@yahoo.com
fax: n/a

November 22, 2017

Certificate of Conferral

I hereby certify, that pursuant to Local Rule 7.1(a)(3), I conferred with counsel for the

Defendant, who consented to the Motion. See Exhibit 3 attached hereto. I also conferred with

plaintiffs' counsel Jack Scarola and Marco Simons, to inquire whether there were any additional

witnesses in Colombia to be deposed, who should be included in Hague Convention Request. Mr.

Simons did not reply. Mr. Scarola's response may be found in Exhibit 3.

/s/ Paul Wolf

_______________
Paul Wolf

Certificate of Service

I hereby certify that on the 22nd of November, 2017, I filed the foregoing Motion for Hague

Convention Request, the Declaration of Paul Wolf, Esq., and its three Exhibits with the Clerk of

the Court using the Court's Electronic Case Filing (ECF) System, which will send notices to all

persons entitled to receive them.

/s/ Paul Wolf

_______________
Paul Wolf

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 08-01916-MD-MARRA/JOHNSON

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.,

ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION

______________________________________/

This Document Relates To: ATS ACTIONS

Does 1-976 (10-cv-80652)

Does 1-677 (11-cv-80404)
______________________________________/

Proposed Order

In consideration of Plaintiffs Motion for for Issuance of a Letter of Request Under the

Hague Convention for Paramilitary Depositions, all exhibits thereto, and all oppositions, responses

and replies, it is hereby

ORDERED that the Hague Convention Request attached as Exhibits 1 and 2 to Plainitffs' Motion

shall be issued with respect to these three witnesses; and it is further

ORDERED that counsel shall comply with the Court's Order of August 3, 2015 with regard to

these depositions. Counsel wishing to participate in any deposition shall share in the costs, and

shall determine who will conduct the depositions by vote pursuant to the August 3, 2015 order.

Done this _____ day of ____________, 2017

_______________________
U.S. District Judge

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