Case 9:13-cv-80146-KAM Document 66 Entered on FLSD Docket 11/22/2015 Page 1 of 18

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
________________________________________________/
Case No. 13-80146-CIV-MARRA
Doe 1, et al.
Plaintiffs,
v.
Boies Schiller & Flexner LLP
Defendants.
________________________________________________/
Plaintiffs' Memorandum of Law in Opposition to Defendants Time-Sensitive
Motion for Relief from Confidentialiaty Agreement, and in Support of Plaintiffs
Cross-Motion for Rule 26(f) Meeting and Rule 16(b) Conference

Paul David Wolf

CO Bar No. 42107
Attorney for Does 1-88
P.O. Box 46213
Denver, CO 80201
Telephone: (202) 431-6986
paulwolf@yahoo.com

Nov. 22, 2015

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TABLE OF CONTENTS

TABLE OF CONTENTS .....................................................................................

TABLE OF AUTHORITES .................................................................................

ii

FACTUAL SUMMARY.......................................................................................

STANDARD OF REVIEW ..................................................................................

SUMMARY OF ARGUMENT ............................................................................

ARGUMENT ........................................................................................................

1.

The Defendant is Not Entitled to File More Rule 12(b)(6) Motions

under Rules 12(g) and (h). ........................................................................

a.

The allegations of the 88 remaining plaintifs have not changed...

b.

Even if several plaintiffs made statements with details

contradicting some of the allegations in the complaint,
these plaintiffs have still stated claims. .......................................

The issues the Defendant raises are too vague and too trivial
to serve as a reason to stay discovery in this case. ......................

The Defendant may not use the discovery produced to file

an additional Rule 12(b)(6) Motion. ...........................................

The Federal Rules of Civil Procedure require the parties to meet

and write a discovery plan, and to produce initial disclosures. ..............

11

By refusing to participate in a Rule 26(f) conference, the Defendant

is creating a conflict of interest with its own clients. .............................

12

CONCLUSION ..................................................................................................

13

c.

d.

2.

3.

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TABLE OF AUTHORITIES

CASES
Alfadda v. Fenn, 159 F.3d 41 (2nd Cir. 1998) ....................................................

13

Aldana v. Del Monte Fresh Produce, 578 F.3d 1283 (11th Cir. 2009) ..............

13

Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283

(11th Cir. 2010) ..................................................................................................

AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC,

608 F. Supp. 2d 1349 (S.D. Fla. 2009).............................................................

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .....................................

Bryant v. Apple South, Inc., 25 F.Supp.2d 1372 (M.D.Ga.1998) .....................

10

Bryant v. Avado Brands, Inc., 187 R.3d 1271 (11th Cir. 1999) ........................

9-10

Conley v. Gibson, 355 U.S. 41 (1957) ..............................................................

Gates Learjet Corp. v. Jensen, 743 F.2d 1325 (9th Cir.1984) ...........................

13

Hishon v. King & Spalding, 467 U.S. 69 (1984) ..............................................

In re Florida Cement & Concrete Antitrust Litig.,

746 F. Supp. 2d 1291 (S.D. Fla. 2010) ..............................................................

Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604 (3d Cir.1991) .............

13

Magluta v. Samples, 375 F.3d 1269 (11th Cir. 2004) .......................................

Schexnider v. McDermott Int'l, Inc., 817 F.2d 1159 (5th Cir.1987) .................

13

Stamps v. Encore Receivable Mgmt., 232 F.R.D. 419 (D. Ga. 2005) ...............

12

Wright v. Newsome, 795 F.2d 964 (11th Cir.1986) ..........................................

STATUTES AND PROCEDURAL RULES

15 U.S.C. 78dd-1, et seq. (Foreign Corrupt Practices Act) ............................
F.R.C.P. 12(b)(6) .............................................................................................

ii

8
passim

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F.R.C.P. 12(g) ..................................................................................................... 5,6, 13

F.R.C.P. 12(h) ..................................................................................................... 5, 6, 13
F.R.C.P. 26(a)(1) ................................................................................................

11-12

F.R.C.P. 26(f) .....................................................................................................

11-12

F.R.C.P. 30(b)(6) ................................................................................................

12

F.R.C.P. 37(a)(2)(A) ..........................................................................................

11

OTHER
Wright, Miller, & Marcus, Federal Practice and Procedure: Civil 2d 2053 ....

iii

12

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FACTUAL SUMMARY
On June 5, 2015, the Court entered an order on Defendants's rule 12(b) motions to
dismiss the complaint in the instant case, No. 13-80146, and an order setting an
evidentiary hearing on the attorney representation conflict issue between attorney Paul
Wolf and the Defendant, in Case no. 10-60573 for July 23, 2015. R. 481 at 11. The
Court determined that Plaintiffs' claims against the Defendant were constitutionally
unripe, since they depended on a finding that Wolf, rather than Boies Schiller & Flexner
LLP, represented the Plaintiffs.2

Id. at 8.

The Court dismissed without prejudice

Plaintiffs' claims for fraudulent inducement to contract, tortious interference with

contract, invasion of privacy, negligence, malpractice and conspiracy to violate the
antitrust laws for lack of subject matter jurisdiction, or alternatively, for failure to state a
claim. Id. at 12. The Court also instructed the parties to pursue resolution of client
duplication issues in a voluntary de-duplication process and to file a written status
report with the Court within 30 days from the date of entry of the order. Id. at 11.
On June 25, 2015, undersigned counsel met with defense counsel Douglass
Mitchell for more than eight hours in Denver, CO, going through all of the individual
cases, comparing the dates when retainer agreements were signed, and verifying the
identities of the represented individuals as ordered by the Court on June 6, 2015. See
Declaration of Paul Wolf, Esq. at 2, attached hereto. ("Wolf Declaration") Also on
June 25, 2015, Plaintiffs counsel entered into a Protective Order agreement with the
1

Docket references are to the instance case, 13-80146-CIV-MARRA, rather than to the docket numbers
used in the MDL.
2
"On the other hand, if, as Wolf alleges, Does 1- 98 did not intend to retain Boies Schiller and were tricked
into signing forms purporting to give power of attorney authority to Boies Schiller, then the powers of
attorney are invalid and there has been no interruption in Wolfs representation of this group. Only in this
latter contingent event could Does 1 - 98 claim potential injuries stemming from alleged unauthorized legal
action taken on their behalf by Boies Schiller." R. 815 at 8.

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Defendant, as described by defense counsel in their motion. Id. at at 3. Pursuant to the

Protective Order, Plaintiffs counsel produced to the Defendant electronic copies of
contracts with the 97 clients, and Spanish language transcripts of 97 depositions of each
of the Plaintiffs taken before a Notario in Colombia. Id. at 4. Plaintiffs did not provide
the Defendants any evidence relating to the underlying claims against Chiquita Brands
International, such as birth and death certificates, police and autopsy reports, and the like.
Id. At this meeting, the parties determined that only 88 of the cases involved duplicate
representation. In the remaining cases, the parties determined that they represented
different claimants, and that one of the 98 claims had been a duplicate.
Unable to resolve their dispute over representation of the remaining 88 cases,
undersigned counsel moved the Court for the Plaintiffs to participate by videoconference
in the hearing set for July 23, 2015.

R. 54

The Defendant then conceded the

representation of every disputed case. R. 56. Wolf withdrew the motion to participate by
videoconference, R. 57, and the Court cancelled the hearing. R. 58.
On July 26, 2015, Wolf moved the Court for leave to file the Amended
Complaint. R. 62. The Defendants objected on the basis that the Amended Complaint
should have been filed as a third party complaint in Case No. 10-60573 (the Defendant's
case against Chiquita Brands) rather than this one. R. 63. Wolf responded by making
another motion for leave to file a Third Party Complaint in Case No. 10-60573 and
asking the Court to grant one motion and deny the other, depending on which was the
appropriate procedure. On November 13, 2015, the Court granted Plaintiffs' first Motion

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for Leave to File the Amended Complaint in Case No. 13-80146. R. 933.3 On November
16, 2015, Plaintiffs filed their First Amended Complaint. R. 64.
Although the Court had granted Plaintiffs leave to file their Amended Complaint
on the basis that the claims were unripe, the court also noted that some claims depended
on damages that had not yet accrued. Specifically, the Plaintiffs' underlying cases against
Chiquita Brands have not been resolved, so the damage to their claims would not be
ascertainable. Although the Court did not dismiss them on this basis, the Plaintiffs are
only refiling the claims that do not depend on compensatory damages in the underlying
case against Chiquita Brands. The claims for fraud, malpractice and invasion of privacy
fall into this category.
After the Amended Complaint was finally refiled, the parties had different
understandings of what the next procedural steps should be. Between 11/16/15 and
11/18/15, Plaintiffs counsel requested in numerous emails that counsel schedule a Rule
26(f) teleconference for the earliest possible time convenient to the Defendant. See
Exhibit A to Wolf Declaration, attached hereto. On 11/18/15, defense counsel finally
clarified that the Defendant was willing to was meet and confer a by telephone week later
about whether a Rule 26(f) conference should be held, but was unwilling to actually
schedule the Rule 26(f) conference. Id. at 1. Defense counsel stated that "So, I am
suggesting that we should meet and confer by telephone to see if we can resolve our
disagreement concerning whether the Rule 26(f) conference should be deferred under the
circumstances of the case.

I will be able to meet and confer by telephone next

Wednesday. Let me know if that works for you." Exhibit 1 to Wolf Decl. at 1. Two

This order shows up in the MDL docket but not in the docket of case 13-80146, so the MDL docket
number is used.

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days later, the Defendants filed their Time Sensitive Motion Relief from Confidentiality
Agreement. R. 65.4
The Motion argues that several Plaintiffs made statements in their depositions
which contradict the allegations made in the Complaint. The Defendant seeks to use the
depositions as exhibits to a second Rule 12(b)(6) Motion it intends to file. The Plaintiffs
oppose the use of discovery material to file a second Rule 12(b)(6) Motion, not only
because it violates the Protective Order, but also because the Defendant may not file any
more motions under Rule 12(b)(6).

STANDARD OF REVIEW
On a motion to dismiss, the complaint is construed in the light most favorable to
the non-moving party, and all facts alleged by the non-moving party are accepted as
true. AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349,
1353 (S.D. Fla. 2009) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Wright
v. Newsome, 795 F.2d 964, 967 (11th Cir.1986)). Dismissal pursuant to Rule 12(b)(6) is
not appropriate unless it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief. Magluta v. Samples, 375 F.3d
1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual
matter to state a claim . . . plausible on its face. In re Florida Cement & Concrete
Antitrust Litig., 746 F. Supp. 2d 1291, 1305 (S.D. Fla. 2010) (citing Bell Atlantic Corp.

We proposed to the Defendant that we file a joint report, each stating our position on how the case should
go forward from here. The Defendant declined this offer and stated its intention to file another Motion to
Dismiss.

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v. Twombly, 550 U.S. 544, 570 (2007); Am. Dental Assoc. v. Cigna Corp., 605 F.3d
1283, 1288-90 (11th Cir. 2010)).
SUMMARY OF ARGUMENT
The

Defendant has already moved for dismissal under Rule 12(b)(6).

The

Defendant is not entitled to make more Rule 12(b)(6) motions, under Rules 12(g) and (h).
The facts alleged in the Complaint were not changed when the Plaintiffs filed their First
Amended Complaint, and two previous Motions to Dismiss were fully briefed. The
Defendant's first 12(b)(6) Memorandum was 39 pages long. See Defendant's
Memorandum in Support of Motion to Dismiss, R. 11, dated 2/4/13. The Court also
granted the Defendants extra time. See Defendants' Motion for Extension of Time to File
Answer, R. 6; Defendants' (nunc pro tunc) Motion for Extension of Time to File Answer,
R. 8; Defendants' Motion for Leave to File Excess Pages, R. 22. The Defendants then
filed a 34 page 12(b)(1) Motion to Dismiss two weeks later. R. 24. See Defendant's
Memorandum in Support of Motion to Dismiss for Lack of Jurisdiction, R. 24, dated
2/19/13. The Defendant has had ample opportunity to make its arguments.
The Defendant's intention is to use deposition transcripts provided in early
discovery pursuant to an agreed Protective Order, see R. 65-2, to show that certain
statements contradict the allegations in the complaint. Specifically, the Defendants state
that several Plaintiffs said they thought the Boies Schiller case would move faster, or did
not disclose that they were already represented by Wolf. They do not state whether they
were ever asked about prior representation, and we did not think to ask them that
question. All of them state that it was never their intention to change attorneys. The
most the Defendants can do with this evidence is to put alleged facts into dispute. Even if

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no conversation about prior representation took place for these Plaintiffs, they have still
stated claims for fraud, malpractice and invasion of privacy, as is argued infra. The
Defendant's motion is trivial as well, since it relates to the details of only a few of the of
the 88 cases filed.
Regardless of whether the Defendants' second Rule 12(b)(6) motion is
permissible, and whether discovery materials may be used this way, the Court should
grant Plaintiffs' Cross Motion for a Rule 26(f) meeting and a Rule 16(b) conference, and
allow discovery to proceed.
ARGUMENT
1.

The Defendant is Not Entitled to File More Rule 12(b)(6) Motions under
Rules 12(g) and (h).
Under Rules 12(g) and (h), the Defendant may not make any further Rule 12(b)

motions raising a defense or objection that was available but omitted from its earlier
motion, other than for lack of subject matter jurisdiction.

FRCP 12(g), (h).5

The

Defendant has already filed two Motions and Memoranda of Law under Rule 12(b),
totalling 73 pages, not including declarations and exhibits. The Court has ruled on them
and the Defendant should Answer the Complaint.
a.

The allegations of the 88 remaining plaintifs have not changed.

The Defendant appears to concede that the allegations in the FAC remain
unchanged from those filed in the prior complaint. The Defendant argues that it may
incorporate additional facts from discovery produced under a protective order, to

The issue of whether the Plaintiffs have stated claims, normally raised in a 12(b)(6) motion, may also be
raised in a motion under Rule 12(c) after the pleadings have closed. In the instant case, the Defendant has
yet to answer the complaint, so the pleadings are not closed, and a motion made under Rule 12(c) is not yet
allowed. Therefore the Court need not consider whether to construe Defendant's proposed motion under
Rule 12(c).

Case 9:13-cv-80146-KAM Document 66 Entered on FLSD Docket 11/22/2015 Page 11 of 18

somehow nullify the allegations which they apparently contradict. The Defendants note
our view that even if BSF "found contradictory facts in the discovery I produced, then
you're disputing an issue of fact, which is a summary judgment issue, not an MTD issue."
R. 65 at 5.
b.

Even if several plaintiffs made statements with details contradicting

some of the allegations in the complaint, these plaintiffs have still
stated claims.

The Defendant states that in several of the cases, the Plaintiff stated either that she
didn't tell Defendant's agents she was already represented by Wolf, or stated that she
thought filing another case with the Defendant would make things go faster.
For example, some Doe Plaintiffs testified that they did not tell the Torrado Law
Firm that they were previously represented by Mr. Wolf. Other Doe Plaintiffs
testified that they wanted two law firms to representing them in hopes that one of
the two cases would go faster. Such testimony is fatal to the claims for relief filed
by those Doe Plaintiffs.
Defendant's Time Sensitive Motion, R. 65 at 5. Even considering these facts in the light
most favorable to the defendant, these plaintiffs would still have stated claims.
The Defendant doesn't say that these plaintiffs, whoever they are, deliberately
misled Defendant's agents.6 We do know the deliberate way in which Defendant's agents
deceived scores of Plaintiffs in this action, by bribing Colombian government officials,
telling our clients that Wolf had either lost the case or given up on it, or simply allowing
them to think that Accion Social was somehow involved in the Chiquita case, without
saying anything. Plaintiffs intend to present voluminous evidence on this point, for 88
separate cases.

The Defendant connects these phrases with the word "or." Presumably, if there were any case where the
plaintiff deliberately misled Defendant's agents in the hopes of speeding up her case, the Defendant would
have pointed this out. However we can only speculate, since the Defendant hasn't identified the cases it
wishes to challenge.

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The Defendant committed fraud by using Colombian government employees in

the Accion Social agency to confuse people about the relationship between the Chiquita
case and the Colombian government, which is fraudulent regardless of whether they
asked the clients if they were already represented. The conduct constitutes a violation of
the Foreign Corrupt Practices Act, 15 U.S.C. 78dd-1, et seq.
The Defendant's agents had a duty to inquire whether the Plaintiffs were already
represented by counsel. The fact that, out of approximately 140 duplicate cases, in every
single case, Wolf signed a retainer agreement before the Defendant, shows that Wolf
screened his clients for prior representation and the Defendant did not. This is still a
fraudulent business practice, even if a plaintiff believed in her mind that joining a second
case against Chiquita would help her chances of winning. Considering that Defendant's
agents were telling people that Wolf had lost his case against Chiquita, even if some
Plaintiffs did not mention their representation by Wolf, Defendant's agents may not have
asked. This is a fact in dispute.
Finally, the facts Defendants tries to put into dispute have no bearing on Plaintiffs'
Invasion of Privacy claims. All but two of the original 97 plaintiffs stated she objected to
her name being published in the court record. The Defendants have found no new facts
to put this into dispute. Therefore, no matter what arguments Defendants may make,
these Plaintiffs would still remain in the case.
c.

The issues the Defendant raises are too vague and too trivial to serve
as a reason to stay discovery in this case.

The Defendant has not identified which cases it is referring to, said how many of
them there are, or shown that Plaintiffs' counsel incorrectly characterized the facts in the

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allegations in the complaint.7 In the context of the Defendant's malicious raid on our
client base, the insinuation that these Plaintiffs deceived the Defendant's agents just
doesn't ring true. The Defendant has, at most, raised issues of material facts with respect
to a few of the 88 claims.8 These minor factual disputes do not entitle the Defendant to
file another motion under Rule 12(b)(6) or to stay discovery.
d.

The Defendant may not use the discovery produced to file an

additional Rule 12(b)(6) Motion.

Rule 12(b) requires that when documents "outside the pleadings" are considered,
the motion must be considered under Rule 56. The Defendants' wish to invoke an
exception to this rule, for documents "so central to the claim so as not to be outside the
pleadings," relying on a footnote in Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1281 n.
16 (11th Cir. 1999). This is obiter dictum in that case and the 11th Circuit has no such
rule.
We decline to address this doctrine [of considering documents "central" to the
pleadings as being incorporated by reference] in the instant case because
Defendants conceded at oral argument that they were not relying on this doctrine
in this appeal; rather, Defendants seek only consideration of the SEC documents
pursuant to the judicial notice concept specified by Fed.R.Evid. 201(b).
Id. at 1281 n 16. In Bryant, the district court granted Plaintiff's Motion to Strike certain
documents that Defendants had attached as exhibits to their Motion to Dismiss. The
attachments were documents filed with the Securities Exchange Commission ("SEC").
The court concluded that it could not consider the SEC filings at the motion to dismiss

The Defendant could indicate in its Reply which cases it disputes, without violating any protective order.
Until the Defendant filed its Time Sensitive Motion, the Defendant would not even tell Plaintiff's counsel
what the issue was it wanted to rebrief in another Rule 12(b) motion. After the Court granted Plaintiffs'
Motion for Leave to Amend, plaintiffs' counsel surgically removed the unripe claims requiring
compensatory damages, and 10 particular claims which the parties agreed were not actually duplicates.
Otherwise, the wording of the complaint was not changed, so there is nothing new to litigate.
8
Defendant's use of the plural terms "some Doe Plaintiffs" and "Other Doe Plaintiffs" suggests at least two
of each type of factual dispute.

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stage without converting the motion into a motion for summary judgment, because the
exhibits proffered by the Defendants embodied matters outside the pleadings. See Bryant
v. Apple South, Inc., 25 F.Supp.2d 1372, 1375-1377 (M.D.Ga.1998).

On appeal, the

11th Circuit held that the district court could have taken judicial notice of the SEC
filings:
With these principles in mind, and following the foregoing case law, we hold that
a court, when considering a motion to dismiss in a securities fraud case, may take
judicial notice (for the purpose of determining what statements the documents
contain and not to prove the truth of the documents' contents) of relevant public
documents required to be filed with the SEC, and actually filed. We believe that
considering the SEC documents in this manner in the instant case is permitted by
Fed.R.Evid. 201, is consistent with the overall aims of the Reform Act, and is not
inconsistent with Rule 12(b)(6), common notions of fairness, or the law of this
Circuit.
Bryant v. Avado, 187 F.3d at 1278. (footnote 10 omitted) The court in Bryant was
careful to note that it could not consider the truth of the statements attached - this would
amount to imposing summary judgment standards at the motion to dismiss stage:
Thus, it appears that the SEC documents are relevant only to show what
cautionary statements the SEC documents contain, not to determine the truth of
matters asserted in the documents. Because of this context, we assume defendants
in this case seek to use the SEC documents only to show what statements the
documents contain, and not to prove the truth of the documents' contents.
Id. at n 10. In contrast, Defendants seek to use discovery materials to put material facts
into dispute, which necessarily involves consideration of the truth of the matters asserted
in the documents. R. 65 at 5.

The Defendant doesn't just seek to prove that the

depositions occurred.
The Bryant case is also distinguishable because it did not involve a second Rule
12(b)(6) motion based on alleged contradictions found in discovery materials.9 The

The Defendants have persuasively argued that the terms of the protective order prohibit the use discovery
materials for the purpose sought by the Defendant, and do not claim that this use was ever discussed by the

10

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burden is on the movant to come up with a case on point. If the Defendants can find an
example of a court approving of this novel litigation tactic, they should come forward and
cite an authority.
2.

The Federal Rules of Civil Procedure require the parties to meet and write a
discovery plan, and to produce initial disclosures.
Rule 26(f) requires parties to confer to consider the nature of the case and the

possibility of a prompt settlement, to make or arrange for the initial required disclosures
pursuant to Rule 26(a),10 and to discuss any issues relating to preserving discoverable
information. F.R.C.P. 26(f). Rule 26(f) also requires parties to develop a proposed
discovery plan11 indicating the parties views on the timing and subjects for discovery,
the form in which certain types of discovery should be produced, issues relating to claims
of privilege, any requested changes in the local rules of discovery, and other orders
relating to discovery that will be requested by the parties. Id. Under Rule 37(a)(2)(A),
if a party fails to make a disclosure required by Rule 26(a), any other party may move to
compel disclosure and for appropriate sanctions. F.R.C.P. 37(a)(2)(A).
The purpose of Rule 26(a) is to accelerate the exchange of basic information
about the case and to eliminate the paper work involved in requesting such information.
parties when agreeing to it. R. 65 at 5. The Defendants don't put forth a proposed standard of review for an
court order voiding the agreement of the parties, but the Defendants haven't shown Good Cause. They are
simply looking for ways to delay discovery in this case and do not have any better argument.
10
Rule 26(a) requires parties to disclose where known the name, address, and telephone number of each
individual likely to have discoverable information that the disclosing party may use to support its claims or
defenses and the subject of the information, unless used solely for impeachment; a copy or a description of,
by category and location, all documents, data compilations, and tangible things in the control of the party
and that the disclosing party may use to support its claims or defenses, unless solely for impeachment; a
computation of any category of damages claimed by the disclosing party, making available for inspection
and copying the documents or other evidentiary material, not privileged or protected from disclosure, on
which such computation is based, including materials bearing on the nature and extent of injuries suffered
and making available for inspection and copying any insurance agreement under which any person carrying
on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the
action or to indemnify or reimburse for payments made to satisfy the judgment. F.R.C.P. 26(a).
11
As explained in the Advisory Committee Notes, absent a discovery report, the court is hindered in its
ability to ensure that discovery is appropriate for the particular claims and issues in a case.

11

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See Advisory Committee Notes, Fed. R. Civ. P. 26. The goal of the initial disclosure
requirement is to get out basic information about the case at an early point. Stamps v.
Encore Receivable Mgmt., 232 F.R.D. 419 (D. Ga. 2005) (quoting Wright, Miller, &
Marcus, Federal Practice and Procedure: Civil 2d 2053).
Plaintiffs' counsel has already outlined in emails to the Defendants what Plaintiffs
believe are the main discovery issues for the conference.12 and is working on identifying
additional documents to be produced as Rule 26(a)(1) disclosures.13 Defense counsel has
not responded to either gesture, apparently believing that the parties are not yet obligated
to meet under Rule 26(f) or to produce initial disclosures. For this reason, the Court
should order the parties to meet pursuant to Rule 26(f) and set a hearing date for a Rule
16(b) conference.
3.

By refusing to participate in a Rule 26(f) conference, the Defendant is

creating a conflict of interest with its own clients.
The Court should not even allow the Defendant to try to stay discovery in this

case. The Defendant cannot argue that Chiquita's Motion to Dismiss for Forum Non
Conveniens should be decided before the court allows any discovery.

This would

prejudice the Defendants' own clients in the case against Chiquita Brands, International.

12

Plaintiffs counsel will produce the 88 plaintiffs for depositions voluntarily, but there are several of
Defendants' agents in Colombia who may not want to testify. Subpeona power through a Hague
Convention request may be required. Those individuals include Ivan Polo and the other Colombians
involved in obtaining the Defendants' fraudulent powers of representation. Additonally, the email
communications of Lee Wolosky, Douglass Mitchell, Nicholas Granvante, and other attorneys working for
the Defendants are relevant. Various 11th Cir. courts are working through privilege issues related to this
case and the privilege issue is complex. The Plaintiffs may ask for a Rule 30(b)(6) witness. It's not clear
whether an expert on Colombian law will be required.
13
These include not only the deposition transcripts, powers of representation and client documents already
exchanged, but also communications related to this dispute, with Heli Abel Torrado, the other plaintiffs
counsel in Chiquita, the news media, and so on.

12

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That's because the effect of discovery is to strengthen the presumption of the plaintiff's
chosen forum.14
The Defendants should be estopped from making arguments which are in the
interest of the law firm, but against the interests of the firm's clients. It is in the interest
of the Defendants' 1500+ clients who are suing Chiquita Brands that their claims are not
dismissed for forum non conveniens. It shouldn't matter one way or the other to them
whether Boies Schiller & Flexner LLP wins or loses the fraud case. It's a clear conflict of
interest between the Defendants' interests and those of their clients, and the Court should
consider the Defendants' motives in opposing discovery, and whether they are consistent
with the interests of their clients.
Conclusion
For the foregoing reasons, the Court should deny Defendants' Time-Sensitive
Motion for Relief from Confidentiality Agreement, noting that further Rule 12(b)(6)
motions are not allowed by Rules 12(g) and (h), and order the parties to meet and discuss
discovery as required by Rule 26(f). The meeting should occur at a conference room in
the courthouse in West Palm Beach, FL if possible. See Plaintiffs' Proposed Order,
attached to Motion being contemporaneously filed. The Court should also set a calendar

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The Third, Fifth, and Tenth Circuits have held that the extent of completed discovery in the American
forum is a relevant - but not necessarily dispositive -consideration in assessing convenience. See Lony v.
E.I. Du Pont de Nemours & Co., 935 F.2d 604, 607, 61314 (3d Cir.1991) ("whenever discovery has
proceeded substantially so that the parties already invested much of the time and resources they will expend
before trial, the presumption against dismissal ... greatly increases"); Schexnider v. McDermott Int'l, Inc.,
817 F.2d 1159, 1163 (5th Cir.1987); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir.1984)." 14
The 2nd Circuit in Alfadda v. Fenn, 159 F.3d 41, 48 (2nd Cir. 1998) also analyzed the issue in obiter
dictum. We haven't found a case on point in the 11th Circuit, although the Lony case was cited favorably
in Aldana v. Del Monte Fresh Produce, 578 F.3d 1283 (11th Cir. 2009), and there doesn't seem to be any
contrary authority in any circuit.

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Case 9:13-cv-80146-KAM Document 66 Entered on FLSD Docket 11/22/2015 Page 18 of 18

date for a hearing pursuant to Rule 16(b), to address any issues in the parties' discovery
plan, and set a schedule for discovery.
Respectfully submitted this 22nd day of November, 2015.

/s/ Paul David Wolf

_______________________________
Paul David Wolf, CO Bar No. 42107
Attorney for Does 1-88
P.O. Box 46213
Denver, CO 80201
Telephone: (202) 431-6986
paulwolf@yahoo.com
Certificate of Service
I hereby certify that on the 22nd day of November, 2015, I filed the foregoing
Motion for Rule 26(f) Conference with the clerk of the court using the court's CM/ECF
system, which will send notification to the attorneys of record for all other parties in this
litigation.
/s/ Paul David Wolf
___________________
Paul David Wolf

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