The case of the day is Giraldo v. Drummond Co. (N.D. Ala. 2013). The plaintiffs were the wives, parents, or children of people who had been murdered by the AUC paramilitary group in Colombia. They sued Drummond, which, it claimed, had made an agreement with the AUC to provide security for the area around one of Drummond’s mines and its railway lines. The claim was brought under the Alien Tort Statute, the Torture Victim Protection Act, and Colombian wrongful death law. As you can probably guess, the Supreme Court’s Kiobel decision cramped the plaintiffs’ style. In an attempt to avoid summary judgment on Kiobel grounds, the plaintiffs offered testimony from the deposition of Jaime Blanco Maya, a supposed intermediary between the AUC and Drummond.1 Blanco, according to the judge, refused to answer questions on cross-examination, instead saying: “What I don’t—see, what I said is already there. It’s clear it was made in that statement and if I already made it in that statement I don’t see it needs to be repeated.” According to the judge, this answer or non-answer constituted a denial of Drummond’s right of cross-examination. Really? Did Drummond move to compel? I don’t buy this reasoning at all. I see no reason why the plaintiffs should not be allowed to use the testimony. Let Drummond file an affidavit under FRCP 56(d) if it thinks that it has been prevented from adducing the evidence it needs to oppose a motion for summary judgment.
The plaintiffs also offered a declaration of Jose Gelvez Albarracin. The judge held it could not be considered on summary judgment because Gelvez had also given testimony at a deposition, and the substance of what he had to say in the declaration was not part of his testimony at the deposition. Again: really? Where does this supposed rule come from? Not from FRCP 56. This certainly doesn’t seem to be the rule of Macuba v. Deboer, 193 F.3d 1316 (11th Cir. 1999), the case Drummond cites for the proposition. There is no rule that forbids a party to offer a declaration from a witness who has also given testimony at a deposition, as far as I know.
In short, these aspects of the decision seem just flat-out wrong. Unfortunately, the judge held in the alternative that the case would be dismissed under Kiobel even if he had considered the plaintiffs’ evidence. So it seems unlikely that these mistakes will receive significant appellate attention.