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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 1-144 (08-cv-80465) v. CBI

Does 1-976 (10-cv-80652) v. CBI
Does 1-677 (11-cv-80404) v. CBI
Does 1-2146 (17-cv-80475) v. Friedheim
______________________________________/

Plaintiffs' Motion for Issuance of a Letter of Request Under the Hague Convention
on the Taking of Evidence Abroad in Civil or Commercial Matters for Testimony
in Plaintiffs' Cases in the Colombian Agency Medicina Legal.

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

in Civil or Commercial Matters (hereinafter “Hague Evidence 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 (“Letter of Request”) for the production of the "Record of

Inspection of the Corpse and Autopsy Report (External Examination of the Corpse)" (hereinafter

"Autopsy Report") by the National Institute of Legal Medicine and Forensic Sciences of

Colombia," (Instituto Nacional de Medicina Legal y Ciencias Forenses de Colombia)

(hereinafter "Medicina Legal") for each of 1,316 cases listed in the attached Annex.

The proposed Letter of Request, following the model form set out in the Hague Evidence

Convention, in English, is filed as Exhibit 1 to this Motion, including its Annex of 1,316 cases.

The same Letter, in Spanish, is attached hereto as Exhibit 2, including the same Annex with

Spanish column headings. The Letter is similar to Plaintiffs' Renewed Motion for Issuance of a

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Letter of Request under the Hague Convention on the Taking of Evidence Abroad in Civil or

Commercial Matters, DE 3080, for testimony from the Comisión de Justicia y Paz (Commission

of Justice and Peace), which the Court granted. See DE 3097. The instant request is for Autopsy

Reports for cases in which counsel has a record that the victim's body was found, meaning that a

death certificate was issued and an autopsy was performed. Specifically, three paragraphs of the

Letter of Request previously issued by the Court were changed to formulate the Letter of

Request for Autopsy Reportts. The return date in paragraph 4 was changed from December 31,

2022 to January 31, 2023, since this request is being filed a month later. The number of cases

and criteria for filtering them was changed in paragraph 6a. This is because these cases were

selected on the basis that the deaths were recorded, while the cases in the previous Letter of

Request were selected on the basis that the plaintiffs had evidence of proceedings in Justicia y

Paz or Accion Social. The third paragraph changed, 8a, explains the documents requested and

agency in possession.

Exhibit 3, attached hereto, contains an example of an Autopsy Report in Spanish. It was

previously filed as an exhibit to Plaintiffs' Status Report on Efforts to Obtain Apostilles, DE

2540-4. This Exhibit is a composite of three documents; a Death Certificate (at page 1), a

Record of Inspection of the Corpse (at pages 2-3), and External Examination of the Corpse (at

pages 4-8), and a certification from the prosecutor that AUC commander Raul Hasbun confessed

to the murder (at pages 9-10).

FACTUAL SUMMARY

On February 19, 2021, the Court entered “A general STAY of discovery ... as to all

designated bellwether Plaintiffs drawn from all Plaintiffs’ counsel groups.” DE 2849. The stay

was extended by another order on November 4, 2021, through February 1, 2022. DE 3011. On

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February 1, 2022, the Court granted the non-Wolf Plaintiff's Motion for an additional stay of

discovery requiring travel to or from Colombia due to the pandemic, extending the stay until

May 2, 2022. DE 3048. The same Order re-opened discovery not requiring Colombian travel.

Id. at 2. On May 2, 2022, discovery reopened, with no party filing a motion to extend the

pandemic stay.

On March 30, 2022, the Wolf Plaintiffs filed a Motion for a Hague Request Letter for the

testimony in 996 specific plaintiffs in the Colombian Comission of Justice and Peace. DE 3080.

The Court Granted the Order on May 3, 2022. DE 3097. Undersigned counsel served the Letter

on the Colombian Ministry of Foreign Affairs by U.S. Priority Mail on May 4, 2022. DE 3102.

On March 29, 2022, the New Jersey Plaintiffs filed their own motion for a Hague

Request Letter, DE 3074, which was denied in an order dated May 3, 2022. DE 3096. In that

Order, the Court ordered that "Within TWENTY (20) DAYS from the date of entry of this

Order, Plaintiffs’ counsel shall reconvene with opposing counsel in effort to reach agreement on

a unified, streamlined proposed Letter of Request directed to the Ministry of Foreign Affairs of

the Republic of Colombia seeking government-generated records pertaining to the deaths of the

decedents underlying the fourteen newly designated bellwether Plaintiff case selections." DE

3096 at 6. The Court further ordered that "Within SEVEN (7) DAYS of such conference,

counsel shall file a joint status report on the results of the meeting." Id.

The Court's order was unclear as to whether all Plaintiffs counsel were ordered to

convene with Defense Counsel, or only the New Jersey Plaintiffs' counsel, who filed the motion.

Undersigned counsel asked the other counsel to meet by phone numerous times, but never

received an answer, and doesn't know if only the New Jersey counsel met with counsel for the

Defendants. See Exhibit 4, attached hereto. Nevertheless, counsel exchanged numerous emails

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regarding the next round of bellwether discovery, which is attached hereto as Exhibit 4. In this

email exchange, undersigned counsel explained his interest in obtaining autopsy reports, but not

in other kinds of police or prosecutor materials, or in requesting the Colombian government

undertake particular steps such as searching particular databases, rather than requesting specific

documents by description. No party responded to two requests for their positions in this Motion.

See Exhibit 4. Since we did not convene with any other counsel, we do not expect they will in

their Joint Status Report, either, so are filing this Motion as we said we would do.

ARGUMENT

The United States and Colombia are parties to the Hague Evidence Convention. 28

U.S.C. § 1781. Because the documents requested herein are located in a foreign country and their

custodians are not subject to the Court’s in personam jurisdiction, issuance of a Letter of Request

is the proper means to ask for these materials. See In re Anschuetz & Co., GMbH, 754 F.2d

602, 615 (5th Cir. 1985); Restatement (Third) of Foreign Relations Law of the United States §

474(2). The four comity factors analyzed by the Court in its Order on Plaintiffs' Motion for a

Hague Request Letter for Justice and Peace testimony, DE 3097 at 2, all favor issuing the Letter

of Request, as they did before.

1. The scope of the request is narrowly tailored to a specific category of

relevant information - autopsy reports for plaintiffs in specific cases alleging
deaths, rather than disappearances or injuries.

Although the proposed Letter of Request is for 1,316 reports, of about six pages each, or

a total of 7,896 pages of materials, it isn't “unduly” burdensome because counsel has made

preliminary screening of Plaintiff groups and narrowed the request to those instances where he

has confirmed the death of the plaintiff, rather than the plaintiff's disappearance or injury, and

alleged this in the Complaint. "That the case volume is high is a function of the magnitude of the

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alleged civilian carnage involved, a factor beyond the control of counsel who represents this

entire alleged victim pool." DE 3097 at 2. The requests are sufficiently specific, where the

proposed letter of request seeks Autopsy Reports in the 1,316 cases at issue. Counsel filtered

2,756 cases for the ones in which our spreadsheet indicates that the claim is for a murder rather

than a disappearance or personal injury, as indicated paragraph by paragraph in the complaints,

and found 1,316 cases designated as murders, in which the Plaintiff indicated that the AUC was

the group responsible. The FARC victims' cases and complaints are not part of this request.

The cases were filtered again to ensure that the person requesting the information is a

close family member of the decedent who is entitled to obtain the Autopsy Report under

Colombian law. This is explained in more detail in § 3 infra, and uses essentially the same

criteria as Colombian inheritance law, in terms of degrees of sanguinity from the decedent.

Since these were the criteria we used to determine who had the right to sue Chiquita in the first

place, this filtration didn't have much effect. Neverthess, it allows us to state to Medicina Legal

that the Plaintiffs listed in the Annex have the right to obtain the autopsy reports under

Colombian law, and lists the Plaintiff's relation to the victim in the eighth column of the Annex.

The scope of the material requested has been narrowed to approximately seven pages per

case, consisting of a form filled out by hand by a technical investigator, and a typed report

written by a medical examiner. See Exhibit 3 at 2-8. The technical investigator's report

describes the location where the cadaver was found, and other relevant circumstances, and has

boxes checked indicating that the death was possibly a homicide by firearm, with handwritten

notes about 9 mm cartridges found at the scene, the victim's clothing, and other details. Id. at 2-

3. The medical examiner's report describes the victim's clothing and injuries, and external

appearance. Id. at 4-9. This report indicates that, for this murder at least, a complete autopsy

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involving dissection wasn't performed. Id. This report also concludes that the victim died from

firearm projectiles. Id. at 8.

The request has therefore been narrowed in three ways: by restricting the cases to those

alleging murders, by restricting it to Plaintiffs with the right to obtain the reports under

Colombian law, and by restricting the scope of the information sought, to two specific reports

totaling about seven pages for each case. These are the same factors previously found by the

Court to be an adequate showing of narrowness. DE 3097 at 2.

2. The narrow category of information sought - Autopsy Reports - doesn't

encompass privileged materials.

The Autopsy Reports are part of the victims' clinical history, and are medical records that

can be released to "close family members," although in practice they are not released unless the

person is persistent and can demonstrate a need for the information. Aside from the Autopsy

Report in Exhibit 3, very few of the Plaintiffs have been able to obtain them. Chiquita can

confirm how many autopsy reports were produced for the first 56 bellwether cases. None of our

other bellwether plaintiffs could obtain them, and we doubt any of the remaining 56 could either.

The letter to Medicina Legal in Exhibit 5 was part of an effort that also involved going to the

hospital morgue and inquiring in person, and attempts to follow up on the phone.

The only privilege that could apply to this information is the doctor-patient privilege.

The patient is the privilege-holder with respect to that privilege. But this isn't the right analysis.

The balancing of the requester's need for the information, against the privacy rights of the

deceased person and any others, has been analyzed by Colombian courts, as explained infra in §

3. In Colombia, close family members have special rights to obtain the entire clinical histories of

the deceased person, when motivated by "knowing the truth about what happened to their family

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member, determining exactly what the causes of death were, or evaluating the possibility of

taking legal action to establish responsibilities for that act …" Id.

3. The Plaintiffs attempted to obtain this information through informal

requests to the Colombian government without success.

Although the legal heirs in the Giovani Rivas Borja case were able to obtain an autopsy

report (see Exhibit 3), they are not generally available by making written requests. No other

plaintiffs in our first group of bellwether cases were able to obtain them, either by going to the

hospital where they were kept, or by requesting them by letter. See Exhibit 5 attached hereto,

November 29, 2020 Letter to Medicina Legal, previously filed as DE 2751-3. The letter had

requested autopsy reports for the first group of four bellwethers, and included the Notices of

Deposition and a Colombian Supreme Court case showing why the autopsy reports should be

released. Medicina Legal never replied to this letter.

The case, Sentencia T-158A/08 of the Fourth Chamber of Review of the Constitutional

Court, is included in Exhibit 5 at pages 27-66, along with the letter to Medicina Legal, to which

the case was attached. The case involved a mother trying to obtain the medical records of her

deceased son, which are referred to as his clinical history, and included the autopsy report, and

the procedural difficulties she had experienced in obtaining it from the hospital. The court

balanced the interests of various persons who could be affected by the release of the information,

and reasoned that the information could be of special importance to "close family members,"

who appear to include persons within the first degree of sanguinity, and also recognized "the

possibility of taking legal action to establish responsibilities for that act" as a legitimate motive

for requesting the medical records.

Indeed, although it is true that by this route, any person who demonstrates a legitimate
interest in knowing the content of an individual's clinical history, whether he or she is
dead or alive, may request the viewing of the document or the judicial inspection of the

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same in order to enforce it within a possible process, the truth is that in the event that the
owner of the history dies and whoever is interested in knowing said document is not a
third party but the mother, the father, the sons or daughters, the spouse or permanent
partner of the deceased, this mechanism is too burdensome.

And this is because the situation in which other subjects find themselves who could
eventually have an interest in knowing the clinical history is not comparable to that
experienced by the closest relatives. While the former can argue interests of an
economic, patrimonial or even merely informative nature, the relatives of the deceased, in
addition to experiencing the mourning that the loss of a loved one entails, retain a special
interest in others, due to the affective bond they maintained. with that person. Thus, for
example, knowing the truth about what happened to their family member, determining
exactly what the causes of death were, or evaluating the possibility of taking legal action
to establish responsibilities for that act, are motivations that allow us to conclude that the
mechanism provided for in the Code of Civil Procedure is too onerous in the case of the
closest relatives of the deceased.

Sentencia T-158A/08 at 29-30, Exhibit 5 at 55-56. The decision is in Spanish. This section was

translated by undersigned counsel, and as foreign law, can't be relied on by the court without

expert testimony. It is for Medicina Legal to determine whether the legal requirements to release

this information to these persons has been met. That is why the Annex lists the relationship

between the Plaintiff and the decedent in the eighth column. In the vast majority of these cases,

the Plaintiff is either the spouse, the common-law spouse, parent, child, or sibling of the

decedent. There are two aunts and three uncles suing, three grandmothers, and one niece. Aside

from these nine cases, the relationship between the Plaintiff and decedent is within the first

degree of sanguinity. It is most likely that these nine individuals are all next of kin, since

counsel attempted to find the most appropriate person to represent the interests of each victim's

estate.

4. The proposed discovery is not outside the scope permitted by Fed. R. Civ. P.
26 (b)(1).

The documents are important to the litigation, since Chiquita has vigorously contested the

identity of the killers of Plaintiffs’ decedents, arguing that no causal link can be made between

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Chiquita's conduct and the harm to Plaintiffs’ decedents without proof of AUC involvement in

each murder. See Order, DE 3097 at 2. The Plaintiffs will need to prove that the victim was

murdered by a member of the Autodefensas Unidas de Colombia ("AUC"), rather than by some

other cause, such as natural causes.

It may be that, if the Plaintiffs can prove that a member of the AUC confessed to the

crime in the Comission of Justice and Peace, this evidence will be superfluous. However,

Chiquita will have to stipulate to the cause of death being murder by a certain member of the

AUC, at a certain time and place, for the fact to be established without a trial. In addition, the

Court of Appeals may rule that a lesser amount of circumstantial evidence would suffice for the

plaintiffs to bring their cases to trial, so that the cases not admitted in Court in Colombia may

still litigate their civil claims. The Plaintiffs only have to prove their claims to the standard of

more likely than not, rather than the criminal standard used in Colombia, or the standard that the

case has already been resolved by another court.

The Plaintiffs offered twice to stipulate to the cause of death reflected on the death

certificates. See Exhibit 4, attached hereto. "The Hague request would be nearly identical to my

other one, and the only issue I see is whether we need to prove how the victims died. It seems

like we do, and the Defendants didn't respond to my offer to stipulate to the cause of death on the

death certificate." Id. at 6. "If the Defendants are not going to stipulate to the cause of death on

thedeath certificates, then we need this evidence." Id. at 10. However, this isn't really fair to the

Plaintiffs, since the Autopsy Reports also show the extremely violent nature of the murders. For

example, the autopsy of one of the victims in the bellwether cases, Giovani Rivas Borja, contains

a diagram showing the pathways of nine bullets which entered the victim's body. See Exhibit 4

at 9. Many of the victims were shot through the head, which is evidence that the victim had

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surrendered and was under the control of the killer, while others would corroborate allegations

that the victim was tortured before death. The fact of how each victim died remains in dispute,

and is an essential element the Plaintiffs will need to prove.

Finally, the Court has repeatedly found that it's in the interest of Colombian government

and United States government to promote fair, thorough, and transparent discovery procedures in

civil cases charging imprudent misconduct and facilitation of war crimes against U.S.

corporations operating on foreign soil.

5. The Autopsy Reports are admissible as business records under FRE 803(6).

Although the comity factors do not address the issue of admissibility of the evidence

sought, these records are admissible as business records under FRE 803(6). The doctor who

performed the autopsy on Giovani Rivas Borja, named Dr. Jairo Losada Vidarte, see Exibit 3 at

7, could not be located. However, the reports can be introduced by another doctor with

experience performing autopsies. Counsel envisions using a retired Colombian medical

examiner as an expert to introduce them.

Business records may be admitted so long as a qualified witness testifies that they were

made in the regular course of a business activity and that it was the regular practice of the

business to make such a record. FRE 803(6). The admission of business records is based on the

"systematic checking, the regularity and continuity which produce habits of precision, by actual

experience of business in relying on them, or by duty to make an accurate record as part of a

continuing job or occupation." Notes to Advisory Committee to Rule 803(6). The Rule, Advisory

Committee Notes, and case law all show that "another qualified witness" could testify that they

were made in the regular course of a business activity, and that it was the regular practice of the

business to make such a record. The other "qualified witness" requirement would be satisfied by

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an expert forensic medical doctor who has written autopsy reports and determined causes of

death by performing autopsies.1

Conclusion

For the foregoing reasons, the Plaintiffs' request that this Court issue the attached Letter

of Request under the Hague Evidence Convention to the Republic of Colombia. The Plaintiffs

have made a sufficient showing that the cause of death for each murder is a fact in dispute.

Respectfully submitted,

/s/ Paul Wolf

____________________
Paul Wolf, DC Bar 480285
Attorney for Plaintiffs
PO Box 21840
Washington, DC 20009
(202) 431-6986
fax: n/a
paulwolf@yahoo.com

May 26, 2022

1
The Autopsy Reports are arguably also public records, falling under FRE 803(6). Whether or
not they are is governed by state law. Under Colombian law, Sentencia T158A/08 explains
which legal heirs have the right to obtain the reports, but doesn't put any limitatations on their
use in court. While neither the District of Columbia nor Florida appear to have laws specifically
pertaining to coroner's reports, about half of the U.S. states do, including Ohio (Ohio Rev. Code
§ 313.10) New Jersey (N.J. Rev. Stat. § 52:17B-92) and New York (N.Y. County Law § 677).
These statutes generally explain which legal heirs may obtain copies of the reports, and a
minority also state that they are public records.
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Certificate of Service

I hereby certify that on this 26th of May, 2022, I filed the foregoing Motion, along with
its two Exhibits and Proposed Order, 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

Certificate of Conferral

I hereby certify that on May 7th and 23rd, 2022, I contacted counsel for the Defendants to
try to obtain their position on this Motion, but never received any substantive response. See
Exhibit 4 at 6 and 10.

/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 1-144 (08-cv-80465) v. CBI

Does 1-976 (10-cv-80652) v. CBI
Does 1-677 (11-cv-80404) v. CBI
Does 1-2146 (17-cv-80475) v. Friedheim
______________________________________/

Proposed Order

IN CONSIDERATION of Plaintiffs' Motion for Issuance of a Letter of Request Under

the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters for

Testimony in Plaintiffs' Cases in the Colombian agency Medicina Legal, and all Exhibits thereto,

and all Responses, Oppositions and Replies, and Exhibits thereto, it is hereby

ORDERED that the Motion is GRANTED.

DONE this _______ day of _______________, 2022.

_______________________
Kenneth A. Marra
U.S. District Judge

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