Jane Doe et al v. Drummond Company, Inc et al

Filing 357

MEMORANDUM OPINION AND ORDER-The court has before it Pltfs' Opposed Motion for Issuance of Additional Letters Rogatory to Take Testimony 337 . Pltfs' Motion is GRANTED IN PART. However, the parties are cautioned that, absent either the a greement of the parties or showing of extraordinary good cause, the court will not extend the discovery deadline in this case in the event that testimony from these nine late-issued letter rogatory is not completed by 6/29/2012. Signed by Judge R David Proctor on 4/26/2012. (AVC)

FILED
2012 Apr-27 AM 09:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CLAUDIA BALCERO GIRALDO, et al.,
Plaintiffs,
v.
DRUMMOND COMPANY, INC., et al.,
Defendants.

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Case No.: 2:09-CV-1041-RDP

MEMORANDUM OPINION AND ORDER
The court has before it Plaintiffs’ Opposed Motion for Issuance of Additional Letters
Rogatory to Take Testimony (Doc. #337) filed on March 23, 2012. Pursuant to the court’s order
(Doc. #338) of March 28, 2012, the Motion for Issuance of Additional Letters Rogatory (Doc. #337)
has now been fully briefed (see Docs. #337, 341, 349) and is before the court for review.
I.

Background
Pursuant to 28 U.S.C. § 1781 and Federal Rule of Civil Procedure 28(b), Plaintiffs request

that the court issue letters rogatory seeking testimony from the following witnesses: Edgar Ariel
Cordoba Trujillo (alias “57”); Jairo Alfonso Samper Cantillo (alias “Lucho”); Javier Ernesto Ochoa
Quinonez (alias “Mecanico”); Hernando De Jesus Fontalvo Sanchez (alias “Pajaro”); Jose Aristides
Peinado Martinez (alias “Peinado”); Javier Enrique Coronado Sarmiento; Oscar David Perez Bertel
(alias “Yuca”); and Edgar Ignacio Fierro Flores (alias “Don Antonio”).1 (See Doc. #337). Plaintiffs

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On April 20, 2012, Plaintiffs filed a Supplement to their Motion for Issuance of Additional
Rogatory to Take Testimony seeking an additional letter rogatory for Luis Francisco Robles (alias
Amaury). For the reasons asserted herein, that additional letter rogatory will also be issued by the
court.

contend that during the course of interviewing witnesses pursuant to earlier-issued letters rogatory,
they have discovered that these additional demobilized AUC paramilitaries have testimony relevant
to the case. (Doc. #337 at 1). Specifically, Plaintiffs believe that these additional witnesses have
“extremely important” information relevant to Defendants’ alleged relationship with the AUC and
involvement in the assassination of union leaders in Colombia. (Doc. #337 at 1, 4). The request is
due to be granted, Plaintiffs contend, “because the witnesses from whom Plaintiffs seek testimony
are either newly discovered or have only recently agreed to testify.” (Doc. #337 at 2).
Defendants oppose the issuance of additional letters rogatory over a year after the deadline
for issuing such letters has passed. (Doc. #341 at 5) (“Plaintiffs’ request comes over a year after the
deadline this Court set [after having already continued that deadline once before] for requesting the
issuance of letters rogatory, March 14, 2011.”). Defendants challenge the contention that the
individuals are “either newly discovered or have only recently agreed to testify” (Doc. #337 at 5; see
also Doc. #341 at 5-6) and argue that issuing these letters so late in the game would leave
Defendants without enough time to investigate the veracity of the allegations (Doc. #341 at 6-7)
(“Plaintiffs’ motion is untimely, rife with factual misrepresentations, and utterly lacks a showing of
good cause . . . granting this motion would severely prejudice the Defendants.”).
The parties contest the standard of review that the court should employ in considering the
motion. Defendants contend that Plaintiffs must establish good cause2 for altering the deadline. See
FED. R. CIV. P. 16(b)(4). In particular, Defendants assert that the deadline long ago passed for
issuing letters rogatory and, absent good cause, that deadline cannot be changed; Plaintiffs assert that
2

Good cause “precludes modification unless the schedule cannot be met despite the diligence
of the party seeking the extension.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998)
(internal citations omitted).
2

the terms of the Scheduling Order allows for final witness lists to be filed thirty days before the trial,
and that deadline is applicable here since the testimony sought is for trial purposes only. Plaintiffs
argue that this standard does not apply because they seek the desired testimony for trial purposes
only and do not seek to extend the discovery deadline. (See Doc. #349 at 3, 6).
The court has fully considered the arguments from each camp and rests its decision on two
considerations. First, the Eleventh Circuit (as well as other courts in this Circuit) approves of a
district court’s use of identical timing for discovery and trial depositions, see Kuithe v. Gulf Caribe
Maritime, Inc., 2009 WL 3711553, No. 08-0458-WS-C at *1 (S.D. Ala. Nov. 3, 2009) (“As noted,
the discovery deadline expired over three months ago, and the plaintiff cannot avoid the effect of that
deadline by couching [the witness’s] deposition as a ‘trial deposition.’); Chrysler International Corp.
v. Chemaly, 280 F.3d 1358, 1362, n. 8 (11th Cir. 2002) (“For a court to treat discovery deadlines
as applying to all depositions is not an uncommon or inherently unreasonable kind of shorthand to
say ‘be done with deposition taking by X date.’ So, parties who delay in taking a needed deposition
and who assume that a district court will draw (when the Rules do not and if the pretrial order does
not) a distinction, for pretrial scheduling purposes, between different kinds of depositions assume
a risk: they cannot count on the trial court’s allowing a deposition to be taken closer to the trial
date.”). Second, this case presents the unique circumstance of requiring letters rogatory for the
preservation of testimony for trial is another factor to be considered. (Doc. #349 at 4, 6) (“Recently,
it has become evident that despite Plaintiffs’ diligence and persistence, it is unlikely that either party
will obtain testimony of any detained witness through voluntary depositions.”).
The discovery cut off date in this case is June 29, 2012. The parties and the court have noted
repeatedly that they are serious about sticking to that time frame, especially given the fact that this
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case was originally filed in 2009. (Doc. #339 at 22, 53). Indeed, the deadline for filing letters
rogatory expired in March 2011, over a year ago. (See Doc. #133). The deadline for letters rogatory
ended well before the discovery cut off for good reason – the letters rogatory process, as the court
and the parties have experienced, is not without complications. (See Docs. #148-178, 186-194, 199210, 229, 230, 235, 242, 250-253, 328, 329, 331, 333, 339). However, when the court and the
parties set the letters rogatory cut off date for March 2011, the parties anticipated being able to obtain
voluntary depositions from jailed Colombian witnesses beyond the letters rogatory cut off date. (See
Doc. #349 at 5-6). Voluntary depositions, however, seem to no longer be an option. (See Doc. #349
at 6) (“Thus, for those witnesses who will now speak to Plaintiffs, their only option to preserve
testimony is through the formal letters rogatory process. Plaintiffs’ motion reflects the changing
circumstances and the logistical realities surrounding taking testimonies of incarcerated individuals
in Colombia.”); (see also Doc. #199, “Consent Motion to Take Deposition of Four Individuals
Incarcerated in Colombian Prisons”). In light of these developments, it makes sense now that any
testimony pursuant to letters rogatory should be completed by the discovery cut off date as opposed
to the previously agreed upon letters rogatory cut off date.3 (See Doc. #349 at 9) (“[I]t is highly
likely that the letters rogatory will be completed long before the trial date, as the U.S. and Colombian
ministries are now accustomed to this process . . .”).
3

Even for those individuals whose voluntary depositions were sought, the parties and the
court contemplated that both discovery and trial depositions would be completed before the
discovery cut off date. (See Docs. #199, 210) (“The parties will first take discovery depositions.
These depositions are scheduled for the weeks of September 12 and September 19, 2011, but may
be rescheduled by consent of the parties or if the required permission by the Colombian government
is not provided in time for the depositions to be taken on that schedule. The parties will then take
the trial testimony at a later date, but in no event sooner than one month after the discovery
depositions. The parties have tentatively agreed that the trial testimony of these four individuals will
be taken in November 2011.”).
4

The court is hard-pressed to see the prejudice that Defendants might experience by the
issuance of these nine additional letters rogatory prior to the discovery cut off date. As opposed to
voluntary depositions taken by Plaintiffs for trial purposes, the letters rogatory process (as the courts
and the parties have come to understand) has thus far allowed a full and fair opportunity for
Defendants to participate, pose their own questions, and cross examine. (See, e.g., Doc. #210 at ¶
4). And, at Defendants’ own admission, at least two of the letters rogatory have already been issued
by Defendants, and two of the “new” witnesses have provided sworn declarations. (See Doc. #341
at 7-8; see also Doc. #349 at 10). Plaintiffs have represented to the court and to Defendants that they
already know the content of the witnesses’ prospective testimony and only seek to preserve the
testimony for trial. (See Doc. #349 at 10). The letters rogatory process will afford Defendants the
opportunity to depose these witnesses prior to trial.
III.

Conclusion
For the foregoing reasons, Plaintiffs’ Opposed Motion for Issuance of Additional Letters

Rogatory to Take Testimony (Doc. #337) is GRANTED IN PART. However, the parties are
cautioned that, absent either the agreement of the parties or the showing of extraordinary good cause,
the court will not extend the discovery deadline in this case in the event that testimony from these
nine late-issued letters rogatory is not completed by June 29, 2012.
By separate orders the court will proceed with issuing the letters rogatory as requested.
DONE and ORDERED this

26th

day of April, 2012.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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