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Yes, we have no confidentiality: Plaintiffs’ lawyer goes rogue in Chiquita MDL
May 24, 2017 / 6:53 PM / 6 months ago

Yes, we have no confidentiality: Plaintiffs’ lawyer goes rogue in Chiquita MDL

(Reuters) - The real story of the long-running human rights litigation against Chiquita is that it has gotten as far as it has. Thousands of Colombians are plaintiffs in the case, which is consolidated in federal court in Fort Lauderdale, Florida. They claim that Chiquita aided an array of Colombian terror groups in order to maintain its hold on banana-growing regions. Chiquita, which is represented by Covington & Burling, succeeded in knocking out the plaintiffs’ Alien Tort Statute claims but not in killing the case entirely.

Last month, after rejecting Chiquita’s arguments that the remaining Colombia tort claims should be litigated in Colombia, not Florida, U.S. District Judge Kenneth Marra of Fort Lauderdale set a discovery and trial schedule that calls for the first of two bellwether trials to begin in October 2019. “That’s actually quite a rapid pace, given that we’ve spent nine years at the motion to dismiss state,” said Marco Simons, general counsel of EarthRights International and a lawyer for one of the groups of Colombians in the Chiquita case.

The Chiquita litigation is also an example of cooperation and coordination among plaintiffs’ lawyers. Several firms - including Conrad & Scherer, Schonbrun Seplow Harris & Hoffman, Boies Schiller Flexner, Cohen Milstein Sellers & Toll and Searcy Denney Scarola Barnhart & Shipley – represent Colombians in the case. Judge Marra did not impose a formal MDL leadership structure on plaintiffs’ lawyers.

According to Simons of EarthRights, the lawyers voluntarily agreed to work together on briefs, depositions and strategy. As far back as 2007, before their cases were even consolidated, plaintiffs’ lawyers have been consulting with each other on how to defeat Chiquita’s defenses. In 2011, after the multidistrict litigation was launched, the lawyers all signed an agreement pledging their common interest and confidentiality.

There is, however, a discordant note amid all of this harmony. Plaintiffs’ lawyer Paul Wolf of Denver represents about a thousand Colombians suing Chiquita – a significant percentage of the plaintiffs in the consolidated litigation, according to Simons. He was initially part of the pact among plaintiffs’ lawyers but in 2012, according to a court filing recounting the history, Wolf had a falling out with co-counsel Terry Collingsworth. That summer, Wolf allegedly disclaimed the cooperation agreement among the lawyers representing Colombians. He was removed from the joint email list for his “failure to agree to group decisions.”

Wolf later sued one of the other plaintiffs but that’s not all. According to the other plaintiffs’ lawyers, Wolf began copying Chiquita lawyers on some of his email exchanges with the group. The other firms subsequently accused Wolf of disclosing confidential work product from the Chiquita case to a defense lawyer in another human rights case he was involved in. In that case, Wolf had accused other plaintiffs’ firms of committing a fraud on the court.

In December 2015, the other plaintiffs’ lawyers moved for sanctions against Wolf, who responded that he’d only revealed material that fell under the crime-fraud exception to work product privilege. Last November, Judge Garra declined to sanction Wolf, holding that he was “not persuaded that any confidential matter was disclosed.” But the judge also “emphatically” warned Wolf not to disclose anything else.

“To be clear, Mr. Wolf is without authority to make unilateral determinations regarding the discoverability of potentially privileged communications or documents simply by virtue of his possession or control of that information,” the judge wrote. “The court will not countenance any future unilateral determinations by Mr. Wolf on the discoverability of information or documents in his possession or control, and Mr. Wolf is advised to conduct himself accordingly.”

On Tuesday, Simons of EarthRights told Judge Garra that Wolf is once again giving confidential information to the other side. In an emergency motion, he and other plaintiffs’ lawyers alleged that Wolf copied Chiquita lawyers on emails identifying a handful of clients who signed retainer agreements with different sets of lawyers. When Simons asked Wolf not to include Chiquita lawyers in their email communications, the filing said, Wolf refused. The motion asks Judge Garra to order Wolf to keep information about the overlapping clients confidential.

“Resolving the clients’ intent and wishes may require sharing of confidential communications and other client confidences,” the brief said. “Plaintiffs’ counsel cannot risk disclosure of this information by sharing it with Mr. Wolf, who recklessly continues to share all communications with opposing counsel – even materials that he had previously agreed to keep confidential, such as the identities of unnamed clients.”

Simons said the whole schism with Wolf is “a bit of a sideshow in comparison with the human rights abuses” the Chiquita MDL alleges. “We try to keep our eye on the ball.”

That’s a fair point, but the operation of one of the biggest human rights cases in the U.S. court system is newsworthy, especially because it’s an MDL. MDLs, as you know, don’t have the same procedural rules as class actions. And in this case, Judge Garra put his faith in the common interest of plaintiffs’ lawyers, rather than insisting on a formal leadership structure. Wolf’s renunciation of the informal cooperation among the plaintiffs’ firms has tested that approach.

So far, Simons said, Chiquita’s lawyers seem to have complied with requests not to read potentially privileged plaintiffs’ material. He said his team is focused on discovery as it pushes toward that 2019 trial date. But he agreed that plaintiffs’ lawyers in the MDL “need to be able to litigate the case in a way that safeguards our clients’ interests.” If Wolf’s disclosures of information shared informally endanger those interests, he said, Judge Garra can step in.

I left a phone message for Wolf but didn’t hear back.

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