Case 0:08-md-01916-KAM Document 1994 Entered on FLSD Docket 07/08/2018 Page 1 of 8

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 ACTION

Does 1-976 et al v. CBI, 10-80652-CIV-MARRA

_______________________________________________/

Plaintiffs' Motion to Permit Voluntary, Non-Party

Witnesses who are Denied Visas to Testify at Trial by Video

Come now the Plaintiffs, pursuant to Federal Rule of Civil Procedure 43(a), to move the

Court for an Order permitting voluntary, non-party witnesses who are denied visas to testify by

video at trial. The parties are currently discussing witnesses who reside in Colombia, but are not

imprisoned, and will testify voluntarily. Chiquita's position is that the Plaintiffs must either

arrange for the depositions of these witnesses in Florida, or ask the Court to issue Hague

Convention Requests for each witness. 1 See email correspondence, Exhibit 1 attached hereto.

Either procedure would require the parties to depose every witness, limiting the witnesses who can

1
Taking these depositions in Colombia, as we are doing with imprisoned paramilitaries, would
place a heavy burden on everyone, including the Colombian courts. A Hague Convention Request
is received by the Colombian Ministry of Foreign Relations, which then forwards it to the
appropriate court after making a determination of which one would have jurisdiction over the
witness. Each deposition would require a courtroom with a Colombian judge, in addition to a
court reporter, translator, videographer, and numerous lawyers traveling from the United States.
The travel costs are extraordinary and should be paid by the party requesting the discovery. In
addition, the court we've been dealing with in Itagui for the paramilitary depositions has its own
calendar and is very busy. Finally, the Colombian judge shouldn't have to make rulings on
relevance, or whether certain areas of inquiry are within the scope of the Hague Request.
Case 0:08-md-01916-KAM Document 1994 Entered on FLSD Docket 07/08/2018 Page 2 of 8

testify at trial to those who have been deposed. The Court has previously ordered that the Plaintiffs

must appear for depositions in the forum of their choice. See Order Denying Certain Plaintiffs’

Motion for Protective Order to Participate in Depositions by Video, DE 1535. Chiquita would like

to extend this Order to all other witnesses testifying in the case. 2

Instead, the Court should order that voluntary, non-party witnesses in Colombia may testify

live at trial by video if they are denied visas. 3 It's not too early to resolve this issue. With about

two months left before the extended close of discovery on August 20, 2018, and the Defendant's

insistance on 30 days notice for depositions, see Exhibit 1 attached hereto, there is barely time to

brief this issue before the close of discovery. I've offered to make these witnesses available to

Chiquita any time, including two weeks from now when the depositions of several paramilitaries

are scheduled, or 30 days from now, but don't believe it's the plaintiffs' responsibility to depose

their own witnesses. A party isn't required to depose its own witnesses in order to present their

testimony at trial. The parties' responsibility under Rule 26(a)(1) and 26(e) is to identify the

witnesses and make them available if the other party wants to take their depositions.

Many of the bellwether cases have witnesses other than the plaintiff, in some cases

eyewitnesses to the murder or abduction of the decedent.4 In addition, I have disclosed six

witnesses whose testimony is relevant to all of my cases; including an eyewitness to an incident

2
I've also disclosed to Chiquita, and filed with the Court, the identities of several other witnesses
who reside in the United States, including Michael Chertoff, the Director of Homeland Security
who met with Defendants' lawyers and agents, and according to them, gave them a wink and a nod
to continue making payments to the AUC. I don't intend to take his deposition, but Chiquita can
do so if they want. I shouldn't have to bring him to Florida.
3
In either case, the jury would hear the testimony by video. The Court should prefer live witness
testimony at trial, by videoconference from Colombia, to recorded videos of their testimony in a
Colombian court proceeding.
4
Other counsel have suggested that these witnesses should be identified deposed after the
bellwether case selection process. In any event, there are many of them, they have not been
deposed, and their testimony is important for the trial.
Case 0:08-md-01916-KAM Document 1994 Entered on FLSD Docket 07/08/2018 Page 3 of 8

relied on by Chiquita in which about 20 Banadex workers were taken off of a bus and shot; a non-

retained expert who can explain the significance of plaintiffs' receipt of benefits from Accion

Social; a non-retained expert on the subject of how Chiquita may have benefitted from the AUC's

appropriation of land; and a retained expert who is a Colombian lawyer who will write a report on

damages. I may also have a non-retained expert on the background to the Colombian conflict. I

had an additional non-retained expert who is provided by the state with bodyguards and an armored

car, whose boss decided it would be too dangerous for her to participate in this case.

The first of these witnesses, the eyewitness to the bus massacre, was unable to obtain a visa

to the United States when I tried to include him in my second group of bellwether plaintiffs who

testified in depositions in February of this year. The others have not yet applied for visas. If the

Court establishes the bright line rule that a witness whose visa is denied will be permitted to testify

at trial by video, these expensive and wasteful depositions need not be taken at all.

ARGUMENT

Federal Rule of Civil Procedure 43(a) requires that a witness' testimony must generally be

taken in open court. However, "for good cause in compelling circumstances and with appropriate

safeguards, the court may permit testimony in open court by contemporaneous transmission from

a different location." Id. The determination of whether remote testimony is warranted is a matter

within the court’s discretion. Air Tribune Tech., Inc. v. Atlas Copco AB, 410 F.3d 701, 714 (Fed.

Cir. 2005).

In Air Turbine Technology, the Court considered whether a non-voluntary witness residing

in Sweden could be compelled to testify by video from where she lived. The Court held that due

to the geographic limitations on the Court's subpeona power at the time, it had no jurisdiction to

compel such testimony. Id. at 546. In reaching this conclusion, the Court referred to the
Case 0:08-md-01916-KAM Document 1994 Entered on FLSD Docket 07/08/2018 Page 4 of 8

Commentary to the 1996 Amendments to the Federal Rules of Civil Procedure, which authorized

the Court to allow testimony by contemporaneous transmission. "The Commentary also states that

notice of a desire to transmit testimony should be made as soon as possible, in order for the parties

to arrange a deposition, or secure an advance ruling from the Court. Plaintiff has known from the

early stages of this case that witnesses from outside of the United States would be testifying at

trial." Here, the movants are trying to avoid the situation in Air Turbine Technology, where the

Rule 43(a) motion was made one month before trial.

The Southern District of Georgia analyzed the precise issue of whether a plaintiff who is

unable to obtain a visa may testify by video. Mendoza v. Pascual, 2015 WL 13650770, Case No.

CV 615-40 (SD Georgia 2015). Since there appears to be no 11th Circuit decision on point, the

Court should follow Mendoza and announce a bright line rule. The Mendoza court relied on out

of circuit precedent. El-Hadad v. United Arab Emirates, 496 F.3d 658, 669 (D.C. Cir. 2007)

(affirming trial court’s grant permission for remote testimony due to showing that the party had

been denied a visa); Haimdas v. Haimdas, 720 F. Supp. 2d 183, 187 (E.D.N.Y. 2010) (“As

authorized by Rule 43(a) ..., petitioner, who had been unable to obtain a visa to travel to this

country, testified via a live video link from London, England.”); Matovski v. Matovski, No. 06-

CIV-4259, 2007 WL 1575253, at *3) (S.D.N.Y. May 31, 2007) (“In the limited context of an

ICARA case and on these facts, I consider the father’s inability to obtain a visa ... to satisfy the

standard for good cause....”).

The D.C. District Court also analyzed the issue of good cause under Rule 43(a) in F.T.C.

v. Swedish Match North America, Inc., 197 F.R.D. 1 (DCDC 2000) In Swedish Match North

America, Judge Facciola held that the use of live video transmission would not prejudice the

defendants because adequate safeguards were in place. "In the present case, Mr. Cross will testify
Case 0:08-md-01916-KAM Document 1994 Entered on FLSD Docket 07/08/2018 Page 5 of 8

through live video in open court, under oath, and defendants will have the opportunity to cross-

examine the witness. The court, therefore, will have ample opportunity to assess the credibility of

Mr. Cross. Indeed, as in Official Airline, the court will have a greater opportunity through the use

of live video transmission to assess the credibility of the witness than through the use of deposition

testimony." Id. at 2, citing Official Airline Guides, Inc. v. Goss, 6 F.3d 1385 (9th Cir.1993);

Beltran–Tirado v. INS, 213 F.3d 1179, 1185–86 (9th Cir.2000). Judge Facciola took a more

expansive view of Rule 43(a) than the Advisory Committee. " In any event, and notwithstanding

the Advisory Committee Notes, I am mystified as to why anyone would think that forcing a person

to travel across the continent is reasonable when his testimony can be secured by means which are

a) equivalent to his presence in court and b) preferable to reading his deposition into evidence."

Id.

The Court has previously ruled that the Plaintiffs must appear for depositions in the forum.

See Order Denying Certain Plaintiffs’ Motion for Protective Order to Participate in Depositions

by Video, DE 1535 The Court considered its prior forum non conveniens ruling, and found that

the plaintiffs must personally appear in their chosen forum where they want to sue. "Plaintiffs

cannot now be heard to complain about having to come to their chosen forum to fulfill their

obligations as litigants in order to prosecute their claims." 5 Id. at 2. Although the Court didn't

cite any case law, it is true that courts have held that plaintiffs must personally appear for

depositions in their chosen forum. There is no such obligation or case law for non-party witnesses.

5
When the bellwether plaintiffs applied for visas to the United States, a fifth or more across the
various plaintiff groups were denied visas. These cases are presumably no longer part of the
bellwether pool. At Chiquita's insistance, I withdrew their claims, as did several (but not all) of
the other plaintiffs' counsel. Chiquita then refused to select replacements, reducing the size of the
bellwether pool.
Case 0:08-md-01916-KAM Document 1994 Entered on FLSD Docket 07/08/2018 Page 6 of 8

The Court has also ruled that all depositions in Colombia must be taken pursuant to the

Hague Convention. DE 1902. This relates to ex parte contacts with paramilitary witness and an

apparent agreement to take Raul Hasbun's testimony in some informal way. 6 The instant motion

is not about deposition protocol, and this Order need not be amended.

Conclusion

For the foregoing reasons, and good cause shown, the Court should ORDER that any

voluntary, non-party witness who is denied a visa may testify at trial by video. If the parties want

to depose these witnesses, they may do so. However, the deposition is not a prerequisite to

testifying at trial.

Respectfully submitted,

/s/ Paul Wolf

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

July 8, 2018

Certificate of Conferral

I hereby certify that I conferred with counsel for Chiquita Brands, counsel for one of the
Individual Defendants who has acted as liaison for the others before, and counsel for each of the
plaintiff groups before filing this motion. Chiquita's response is attached hereto as Exhibit 1. They
do not say whether they think witnesses who are not deposed should be able to testify by video at
6
Plaintiffs Attorney Jack Scarola will not answer a question I have raised in an email, which is
how Mr. Scarola is able to contact Raul Hasbun. I only have his email address. I recently wrote
an email to this witness, but have not yet ascertained whether he has an attorney or anyone else
who would serve as a "notice address" to avoid having to investigate where Mr. Hasbun currently
lives. It is not my intention to investigate him but our Hague Request was returned due to lack of
an address. Mr. Scarola was already ordered to produce his email communications, but apparently
communicated with this witness in some other way. I anticipate asking the Court to send another
Hague Request once I make progress determining a valid address.
Case 0:08-md-01916-KAM Document 1994 Entered on FLSD Docket 07/08/2018 Page 7 of 8

trial. No other party responded, although Plaintiffs Counsel Jim Green recently proposed that
these kinds of witnesses should be deposed without going through the Hague Convention process,
which is a separate issue.

/s/ Paul Wolf

_______________
Paul Wolf

Certificate of Service

I hereby certify that on this 8th day of July, 2018, I filed the foregoing document and
referenced exhibit 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
Case 0:08-md-01916-KAM Document 1994 Entered on FLSD Docket 07/08/2018 Page 8 of 8

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 ACTION

Does 1-976 et al v. CBI, 10-80652-CIV-MARRA

_______________________________________________/

Proposed Order

In consideration of Plaintiffs' Motion to Permit Voluntary, Non-Party Witnesses who are

Denied Visas to Testify at Trial by Video, the Exhibit attached thereto, and all Responses,

Oppositions, Replies, and Exhibits thereto, it is hereby

ORDERED that any witness who has been disclosed to the opposing parties, but has been

denied a visa to travel to the United States, may testify by video at trial, regardless of whether their

deposition has been taken.

Done this ___________ day of __________, 2018

____________________
U.S. District Judge