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Case of the Day: Giraldo v. Drummond Co.

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.

Notes:

  1. Blanco was deposed in Colombia, but apparently in a US-style proceeding where both sides’ lawyers had the opportunity to examine and cross-examine.

Case of the Day: Giraldo v. Drummond Co.

The case of the day is Giraldo v. Drummond Co. (N.D. Ala. 2012). According to the complaint, Drummond owned a coal mine in La Loma, in Colombia’s Cesar Province, and it shipped its coal from Santa Marta, in Magdalena Province. Both areas were under the control of the FARC, the Revolutionary Armed Forces of Colombia, a leftist group, and the FARC would attack Drummond for the purpose of seizing its land and redistributing it to peasants. The United Self Defense Forces of Colombia, the AUC, was active in both Cesar and Magdalena Provinces, and by 1997 a civil war was raging there. By 1999, according to the complaint, Drummond had begun to side with the AUC, providing money for arms, soldiers, and operating expenses and getting involved in setting the AUC’s strategy in its war against the FARC. The plaintiffs alleged that “as a result of Drummond’s direct intervention in the civil conflict in these areas, hundreds of people living in Drummond’s railroad corridor were executed as the AUC utilized its well-known scorched earth methodology as a way to terrorize the local population and ensure they would no longer support or sympathize with the FARC.” The plaintiffs, who were the survivors of some of those allegedly executed, sued Drummond and three of its officials, Augusto Jiménez, President of Drummond Ltd., James Adkins, former director of security for Drummond Co., and Mike Tracy, president of DCI mining operations, asserting claims under the Alien Tort Statute and the Torture Victims Protection Act.

The plaintiffs sought the issuance of letters rogatory, asserting that during discovery, they had discovered that several demobilized soldiers of the AUC might have information about the defendants’ relationship with the AUC and involvement in the assassination of union leaders in Colombia. But the deadline for issuing letters rogatory that the court had established had passed. The plaintiffs asserted that the deadline was inapplicable because they sought the new witnesses’ evidence for trial purposes, not only for discovery purposes. 1 The judge decided to issue the letters rogatory, but only on the condition that the depositions be completed by the discovery cut-off date, which the judge had earlier set to be more than a year after the letter rogatory cut-off date.

There is some hint in the decision that the parties had taken enough evidence pursuant to letters rogatory in the case that it was likely that the new witnesses’ evidence could be taken by the time discovery closed, approximately two months after the court’s order. I hope that is the case, because otherwise, given the typical length of time it takes to execute a letter rogatory, this decision could well be a Pyrrhic victory for the plaintiffs.

Notes:

  1. In some American states, e.g., Illinois, there is a strong distinction between “trial” depositions and “discovery” depositions. In other American states, e.g., Massachusetts, where I practice, there doesn’t seem to be any particular distinction. So this portion of the discussion does not seem particularly compelling to me. But it may make more sense to lawyers practicing in Alabama.