Case 0:08-md-01916-KAM Document 2540 Entered on FLSD Docket 08/27/2019 Page 1 of 6

UNITED STATES DISTRICT COURT

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

IN RE: CHIQUITA BRANDS

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

This Order relates to:

ATS ACTIONS
__________________________________________/

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

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

__________________________________________/

Status Report on Authentication

of Colombian Government Documents

On July 1, 2019, the Court ordered the Plaintiffs to either show that the material on the

record on the issue of AUC responsibility for each death is admissible as presented, or explain the

admissible form that is anticipated at trial. DE 2499 at 3. The Court further ordered that "Where

documentary evidence is proffered, Plaintiffs shall – in addition to addressing any applicable

hearsay challenges—further explain how they intend to authenticate the document(s) at trial." Id.

at 4. The Court ordered undersigned counsel to provide this information for two test cases, Doe

378 and Doe 840. Id. Undersigned counsel timely replied on July 14, 2019, explaining the

applicable hearsay exceptions and methods of authentication available. DE 2508. In a footnote

on the last page, undersigned counsel wrote:

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Over the past two weeks, we tried to obtain Apostille stamps for several documents already
in the summary judgment record, without success. This is apparently due to practical
difficulties in verifying the identities of the many officials who sign such documents.
While it may be possible to obtain new copies of these records from the agencies, including
birth and death certificates in particular, we believe they would simply provide photocopies
of the originals, which bear the original dates. Id. We have not found any written authority
underlying this policy.

DE 2508 at 7 n. 8. On July 15, 2019, counsel for the "non-Wolf" plaintiffs responded that

"Attorney Wolf’s statement about apostilles, DE 2508-8, is inaccurate. The 90 day limit is only

for documents from civil registries like death certificates; for those, Plaintiffs can request new

copies and then request an apostille." DE 2510 at 6.1 Defendant Chiquita Brands responded only

that "These documents are hearsay and have not been, and cannot be, authenticated."2 DE 2516 at

22. Since the Court indicated on August 23, 2019 that it would be deciding the summary judgment

motions soon, DE 2538, counsel is providing this status report on his ongoing efforts to obtain

Apostilles.

1
The non-Wolf Plaintiffs argued that they can obtain Apostilles for Colombian public records, but
cited only to the website of the Colombian Ministry of Exterior Relations. In an email dated July
15, 2019, counsel for the non-Wolf plaintiffs wrote to me and stated that "I have been discussing
the authentication issue with our partners in Colombia over the past few weeks and I think that we
have reached an understanding of how we can authenticate documents via the apostille. Would
you be interested in jumping on the phone to discuss as it may also be helpful to your cases? I saw
your filing and I think what our partners have proposed would help overcome some of the issues
you have encountered." See Exhibit 1, attached hereto, email correspondence of July 15-16, 2019.
Instead of jumping on the call, I forwarded the email to counsel for the Defendant and asked that
they be included in a teleconference. Counsel for the non-Wolf plaintiffs have not substantively
responded to my request for a written explanation of their understanding of how they intend to
obtain Apostilles. Nor did they refer to these emails in their brief, which was filed later the same
day. See DE 2510 at 6. The Court may take this assertion of having an undisclosed method for
document authentication for what it's worth.
2
This was in response to our argument that good cause exists to treat notarized Colombian records
as presumptively authentic, even without Apostilles. DE 2508 at 7. Chiquita should be trying to
argue that good cause does not exist. One way Chiquita could do this would be to obtain a
comparable Colombian government document, signed by a retired official, and obtain an Apostille.
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A. Status of efforts to obtain Apostilles.

Since our original Response, see DE 2508, we tried to follow the procedures on the website

of the Ministry of Exterior Relations3 to see where they would lead. First, undersigned counsel

submitted through the website, a letter from the prosecutor's office ("fiscalia" in Spanish) in

Chigorodo about Doe 378's case, dated April 3, 2013, and previously filed under seal as DE 2328

at 4. (WOLF000107). The documents were rejected, because they were not they types of

documents subject to approval by visual inspection, or signed by officials who are currently

registered with the Ministry of Exterior Relations. See Exhibit 2, attached hereto. Then our other

Bellwether Plaintiff, Doe 840, went to the prosecutor's office in Turbo, with four different types

of documents for her case, including the victim's death certificate, an autopsy report, and a

certification and "reference" form that paramilitary Raul Hasbun had confessed to the crime two

years earlier. 4 The fiscalia in Turbo put new stamps on them. See Exhibit 3, attached hereto.5

Undersigned counsel then submitted the four documents, with new fiscalia stamps, using the

online form. The response was that of the four, only the death certificate was approved for an

Apostille. The other three were rejected because they were not signed by officials registered with

the Ministry of Exterior Relations. See Exhibit 4, attached hereto. The government's response

3
https://www.cancilleria.gov.co/tramites_servicios/apostilla_legalizacion_en_linea/requisitos
4
Although I wasn't present with Doe 840 when she went to the prosecutor's office, it appears that
on July 22, 2019, she received a new letter from the fiscalia in Medellin, and related form called a
reference, both of which state that paramilitary Raul Hasbun confessed to the crime on June 15,
2017. The Plaintiff had not even known of this before, and the documents were not available at
the time we argued our opposition to Defendant's motion for summary judgment. They would
appear to conclusively prove the Defendant's liability, given the Defendant's long relationship with
Mr. Hasbun and his family's business, Unibán. Nevertheless, despite being recently issued, they
were not eligible to receive Apostilles. See Exhibit 4, attached hereto.
5
The documents have been filed in unredacted form to avoid any effect of a pending appeal in the
11th Circuit by Earthrights International, of the Court's Order on Defendant's Motion to Preclude
the Continued Use of Pseudonyms. The daughter of Doe 840 (Ludy Rivas Borja) already disclosed
her identity on the record, to comply with the Court's Order.
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appears to distinguish between documents not signed by a currently registered official, and those

not signed by anyone at all. Id. However, only the last page of Exhibit 3, which is a computer

generated form stating that Raul Hasbun confessed to the murder, bears no signature at all. The

document does, however, bear the recent stamp, in blue ink, of the fiscalia in Turbo. This week,

Plaintiff Doe 840 plans to visit the fiscalia again to show them the rejection and see whether

anything more can be done. AS it is, it does not appear that most of the tens of thousands of

documents we have collected over the years will be eligible for Apostilles.

B. There is good cause to treat locally-authenticated Colombian government records as

presumptively authentic, without requiring Apostilles.

If all parties have been given a reasonable opportunity to investigate a document’s

authenticity and accuracy, the court may, for good cause, order that it be treated as presumptively

authentic without final certification. FRE 902(3)(A); DE 2508. As demonstrated in the previous

section, Plaintiffs have been working diligently on obtaining new letters signed by government

officials who are currently registered with the Colombian Ministry of Exterior Relations. We

already argued the good cause standard, DE 2508 at 7, but Chiquita only responded that "These

documents are hearsay and have not been, and cannot be, authenticated." DE 2516 at 22.

Requiring Colombian government agencies to re-issue public records after the official who

signed them has left his post, for the purpose of obtaining Apostilles, would mean replacing the

original signer of the document with another person who probably has no personal knowledge of

the case. What the fiscalia in Turbo did was to put a new stamp on its old letter. We are currently

explaining the problem to them to see if new correspondence can be obtained.

Conclusion

The Court shouldn't dismiss the case in summary judgment due to concerns over Apostilles.

It may be possible for the Plaintiffs to obtain new letters from Colombian government agencies,

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but those agencies are understandably reluctant to write them, since the new officials have no

personal knowledge of these incidents, which occurred decades ago.6 The correspondence was

issued in the normal course of these agencies' business, by forensic labs, prosecutor's offices,7 and

agencies that provide relief to victims of war crimes. Chiquita's argument that the evidence

"cannot" be authenticated is unsupported, and shouldn't be a reason to grant summary judgment,

since the evidence need not even be in admissible form at this stage.

Respectfully submitted,

/s/ Paul Wolf

________________________
Paul Wolf, D.C. Bar #480285
Attorney for Plaintiffs
PO Box 21840
Washington, D.C. 20009
(202) 431-6986
paulwolf@yahoo.com

August 27, 2019

6
The documentary evidence varies per case. When a body is found, it is brought to the morgue
and a death certificate is issued. When no body is found, there is a national DNA database and a
program to identify bodies buried in mass graves. Whenever a serious crime like a murder is
reported to the prosecutor's office, they write a letter to the person who made the complaint. If the
victim has filed a claim with the Commission of Justice and Peace, or Accion Social, those
agencies also issue correspondence to the victims in the course of their regular processing of the
claims. All of these documents were written by officials with personal knowledge of the matters
they were writing about. Now, years later, their names cannot be found in the registry of the
Ministry of Exterior Relations. Is it reasonable to ask these agencies for new correspondence
signed by people who are currently registered, but did not actually work on this case?
7
The Commission of Justice and Peace, which is often described as a war crimes tribunal, and
prosecuted paramilitary Raul Hasbun and others, is actually a component of the Fiscalia General
de la Nacion, or National Prosecutor's Office.
5
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Certificate of Service

I hereby certify that on this 27th day of August, 2019, I filed the foregoing document with
the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will send
electronic notices to all persons entitled to receive them.

/s/ Paul Wolf

______________
Paul Wolf