03.31.11 Statement of Interest Re Uribe

8/7/2019 03.31.11 Statement of Interest Re Uribe

http://slidepdf.com/reader/full/033111-statement-of-interest-re-uribe 1/22

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CLAUDIA BALCERO GIRALDO et al., ))

Plaintiffs, )

)

v. ) Civil Action No. 1:10mc00764 (JDB)

)

DRUMMOND COMPANY, INC et al., )

)

Defendants. )

)

STATEMENT OF INTEREST AND SUGGESTION OF IMMUNITY

OF AND BY THE UNITED STATES OF AMERICA

Pursuant to 28 U.S.C. § 517, the United States respectfully submits this Statement1

of Interest and Suggestion of Immunity in response to this Court’s Order dated January 10, 2011.

Claudia Balcero Giraldo et al. v. Drummond Company, Inc. et al., 1:10mc00764 (D.D.C.) (JDB)

(Dkt. # 7). Plaintiffs seek to enforce a third-party deposition subpoena served on the former

President of Colombia, Alvaro Uribe, in connection with ongoing litigation between the above-

named parties in the United States District Court for the Northern District of Alabama. See Claudia

Balcero Giraldo et al., v. Drummond Company Inc., et al., 2:09cv1041 (N.D. Al.) (RDP).

As set forth more fully herein, the United States suggests that former President Uribe

enjoys residual immunity from this Court’s jurisdiction insofar as Plaintiffs seek information (i)

relating to acts taken in his official capacity as a government official; or (ii) obtained in his official

capacity as a government official. Insofar as Plaintiffs seek to depose former President Uribe

28 U.S.C. § 517 provides that “any officer of the Department of Justice[] may be sent by1

the Attorney General to any State or district in the United States to attend to the interests of the

United States in a suit pending in a court of the United States.”

Case 1:10-mc-00764-JDB Document 13 Filed 03/31/11 Page 1 of 8



regarding (i) acts performed or information that he obtained while not serving as a government

official; or (ii) acts performed or information obtained during his time in office other than in his

official capacity as a governmental official, the United States does not suggest that he is entitled to

immunity. Nonetheless, in light of the concerns expressed by the Government of Colombia, and in

the interest of comity, the United States respectfully requests that this Court order Plaintiffs to

exhaust other reasonably available means of obtaining the information they would seek from former

President Uribe before ordering him to give a third-party deposition regarding those matters as to

which he would not be entitled to testimonial immunity.

In support of its interest and suggestion, the United States sets forth as follows:

1. The United States has an interest in this action because it raises the question

whether a former foreign governmental official, who has served in several governmental capacities

including, among other offices, as a senator, governor of Antioquia Department, and President of

Colombia, is immune from the Court’s jurisdiction to compel his testimony. Historically, in suits

against a foreign state or its officials, courts would look to the State Department for a determination

of whether the foreign state or its official was immune from the courts jurisdiction or, instead,

subject to it. See Samantar v. Yousuf, 130 S. Ct. 2278, 2284 (2010). The practice of judicial

deference to State Department foreign sovereign immunity determinations has its roots in the

Supreme Court’s Schooner Exchange decision in 1812. Id.; see the Schooner Exchange v.

M’Faddon, 11 U.S. (7 Cranch) 116 (1812).

2. Until the enactment of the Foreign Sovereign Immunities Act in 1976 (FSIA), 28

U.S.C. § 1602 et seq., courts routinely “surrendered” jurisdiction over suits against foreign

sovereigns “on recognition, allowance, and certification of the asserted immunity by the political

2




branch of the government charged with the conduct of foreign affairs when its certification to that

effect is presented to the court by the Attorney General.” Republic of Mexico v. Hoffman, 324 U.S.

30, 34 (1945); see Samantar, 130 S. Ct. at 2284; Ex parte Peru, 318 U.S. 578, 587-89 (1943). The

Supreme Court made clear that “[i]t is . . . not for the courts to deny an immunity which our

government has seen fit to allow, or to allow an immunity on new grounds which the government

has not seen fit to recognize.” Hoffman, 324 U.S. at 35. This deferential judicial posture was not

merely discretionary, but was rooted in the separation of powers. Under the Constitution, the

Executive is “the guiding organ in the conduct of our foreign affairs.” Ludecke v. Watkins, 335 U.S.

160, 173 (1948). Given the Executive’s leading foreign-policy role, it was “an accepted rule of

substantive law governing the exercise of the jurisdiction of the courts that they accept and follow

the executive determination” on questions of foreign sovereign immunity. Hoffman, 324 U.S. at 36;

see also Spacil v. Crowe, 489 F.2d 614, 618 (5th Cir. 1974) (“[W]e are analyzing here the proper

allocation of functions of the branches of government in the constitutional scheme of the United

States. We are not analyzing the proper scope of sovereign immunity under international law.”).

3. When Congress enacted the FSIA, it transferred from the Executive Branch to the

courts the responsibility to make immunity determinations in suits against foreign states. See

Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488-89 (1983). Congress, however, did not

codify standards for determining the immunity of foreign officials. Accordingly, many courts

continued to look to the Executive Branch for a determination of foreign official immunity,

especially in suits against foreign heads of state. See, e.g., Wei Ye v. Jiang Zemin, 383 F.3d 620,

625 (7th Cir. 2004); United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997). Some courts

nevertheless held that the FSIA and not the Executive Branch determined the principles governing

3




foreign official immunity. See, e.g., Chuidian v. Philippine Nat. Bank, 912 F.2d 1095, 1102 (9th Cir.

1990). The Supreme Court resolved the circuit conflict last Term, holding that, “[a]lthough

Congress clearly intended to supersede the common-law regime for claims against foreign states, we

find nothing in the statute’s origin or aims to indicate that Congress similarly wanted to codify the

law of foreign official immunity.” Samantar, 130 S. Ct. at 2291. In so concluding, the Court found

“no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s

role in determinations regarding individual official immunity.” Id. Thus, the Executive Branch

continues to play the primary role in determining the immunity of foreign officials as an aspect of

the President’s responsibility for the conduct of foreign relations and recognition of foreign

governments. Accordingly, courts today must continue to defer to Executive determinations of

foreign official immunity, just as they deferred to determinations of foreign state immunity before

the enactment of the FSIA.

4. In making a foreign official immunity determination, the Department of State takes

into account principles of international law as well as the United States’ foreign policy interests.

Under international law, sitting heads of state enjoy a broad immunity from the jurisdiction of

foreign courts. Considering customary international law, the Executive Branch historically has

suggested the immunity from suit of sitting heads of state. See, e.g., Tachiona v. United States, 386

F.3d 205 (2d Cir. 2004); Wei Ye v. Jiang Zemin, 383 F.3d 620, 625 (7th Cir. 2004). Under

international law, former heads of state have residual immunity from suit only for acts taken in an

official capacity while in office. See, e.g., Arrest Warrant of 11 Apr. 2000 (Dem. Rep. Congo v.

Belgium), 2002 I.C.J. 3, ¶ 61 (Feb. 14) (Merits). As with immunity for sitting heads of state, the

Executive Branch historically has accepted this principle of residual immunity and has suggested

4




the immunity from suit of former heads of state. See A, B, C, D, E, F v. Jiang Zemin, 282 F. Supp.

2d 875, 883 (N.D. Ill. 2003) (holding that head of state was immune from suit brought while he was

sitting head of state even though he left office during the pendency of the litigation).

5. The Legal Adviser of the United States Department of State has informed the

Department of Justice that the Colombian Government, through its Ambassador to the United States,

Gabriel Silva, has formally requested that the Government of the United States suggest “any and all

immunities applicable to President Uribe and to specifically request head-of-state immunity on his

behalf.” Letter from Gabriel Silva to the Honorable Hillary Clinton, dated November 12, 2010

(attached as Exhibit 1). Taking into account the relevant principles of customary international law

and the United States’ foreign policy interests, the Executive Branch has determined that permitting

the action to proceed against former President Uribe would be incompatible with the principles

adopted by the Executive Branch governing residual immunity insofar as Plaintiffs seek information

(i) relating to acts taken in his official capacity as a government official; or (ii) obtained in his

official capacity as a government official. Insofar as Plaintiffs seek to depose former President Uribe

regarding (i) acts performed or information that he obtained while not serving as a government

official; or (ii) acts performed or information obtained during his time in office other than in his

official capacity as a governmental official, the United States does not suggest that he is entitled to

immunity.

6. Insofar as Plaintiffs seek information from former President Uribe for which he

does not enjoy immunity, the United States nonetheless retains a foreign relations interest in

minimizing the burden on former President Uribe as a former head of state. On the present record,

it does not appear that Plaintiffs can demonstrate that they have exhausted other reasonably available

5




avenues to obtain the information about which they seek to depose former President Uribe. In this

regard, Plaintiffs have advised the Department of State that they have not sought information from

the Government of Colombia through letters rogatory or other avenues that may be available under

Colombian law. See Letter from Harold Hongju Koh to the Honorable Tony West, dated March 31,

2011 (attached as Exhibit 2, with attachments). In view of comity concerns, the respect due former

presidents of friendly states, and the concerns expressed by the Colombian Government, the United

States respectfully requests that, before allowing the deposition to proceed as to information or topics

not subject to the Executive Branch’s suggestion of immunity, this Court order Plaintiffs to exhaust

other reasonably available methods of procuring such information.2

7. The D.C. Circuit has recognized that principles of comity require courts to

consider sensitivities that would be raised by an attempt to take the deposition of a senior foreign

official, as such concerns would be raised when seeking the deposition of a senior U.S. official. In

Re Minister Papandreou,139 F.3d 247, 254 (D.C. Cir. 1998). Cf. H.R. Rep. No. 94-1487 at 12, 23

(legislative history of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330; 1602-1611).

Courts, moreover, should be wary of permitting deposition testimony from a former foreign official

in the absence of a strong showing of a demonstrated need for testimony concerning material facts

in the unique personal knowledge of that individual. Cf. Societe Nationale Industrielle Aerospatiale

v. United States District Court, 482 U.S. 522, 546 (1987) (enjoining U.S. courts to “exercise special

vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome,

Assuming plaintiffs exhaust other reasonably available methods of procuring the2

information not covered by former President Uribe’s residual immunity, the United States takes no

position on whether the testimony of former President Uribe is, in fact, needed in these proceedings,

and, if so, when, in what form, or on which issues.

6




discovery may place them in a disadvantageous position” and to “demonstrate due respect . . . for

any sovereign interest expressed by a foreign state.”). Indeed, courts in this jurisdiction have

appropriately required parties seeking to depose former high level officials to demonstrate that the

former official’s “testimony would be material as tested by a meticulous standard, as well as being

necessary in the sense of being a more logical and more persuasive source of evidence than

alternatives that might be suggested.” United States v. Poindexter, 732 F. Supp. 142, 147 (D.D.C.

1990). In considering the impact of Plaintiffs’ efforts to seek the deposition of former President

Uribe, moreover, the Court should take into consideration the interests of the United States.

Discovery in U.S. courts involving the head of state of a friendly foreign state, or the former head

of state, is rare and implicates the foreign policy interests of the United States. Because such cases

are also rare in other countries, U.S. practice may influence how foreign courts handle this issue as

well. In particular, foreign courts confronted with a request to compel discovery from former U.S.

Presidents could apply reciprocally the standards used by U.S. courts.

CONCLUSION

For the foregoing reasons, the United States suggests that former President Uribe

enjoys residual immunity from this Court’s jurisdiction insofar as Plaintiffs seek information (i)

relating to acts taken in his official capacity as a government official; or (ii) obtained in his

official capacity as a government official. Insofar as Plaintiffs seek to depose former President

Uribe regarding (i) acts performed or information that he obtained while not serving as a

government official; or (ii) acts performed or information obtained during his time in office other

than in his official capacity as a governmental official, the United States does not suggest that he

7




is entitled to immunity. Nonetheless, in the interest of comity, the United States respectfully

requests that this Court order Plaintiffs to exhaust other reasonably available means of obtaining

the information they would seek from former President Uribe before ordering him to give a third-

party deposition regarding those matters as to which he would not be entitled to testimonial

immunity.

Date: March 31, 2011 Respectfully submitted,

TONY WEST

Assistant Attorney General

VINCENT M. GARVEY

Deputy Branch Director

C. Lee Reeves

C. LEE REEVES

Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave. NW

Washington, DC 20001

Telephone: (202) 514-4805Facsimile: (202) 616-8470

E-mail: [email protected]

Counsel for the United States of America

8




Case 1:10-mc-00764-JDB Document 13-1 Filed 03/31/11 Page 1 of 6


















THE LEGAL ADVISER

DEPARTMENT OF STATE

WASHINGTON

March 31, 2011

The Honorable Tony West, Esq.

Assistant Attorney General

Civil Division

United States Department of Justice

950 Pennsylvania Ave. N.W.

Washington D.C. 20530

Re: Claudia Balcero Giraldo, et al. v. Drummond Company, Inc., et al.,

Civil Action No. 1:10mc00764 (IDB) (D.D.C.)

Dear Assistant Attorney General West:

I write to request that the Department of Justice convey to the United States District

Court for the District of Columbia in the above-referenced case the determination of the

Department of State that Alvaro Uribe, the former President of Colombia, enjoys the testimonial

immunity from the Court's subpoena power described below.

President Uribe is the former head of the Government of Colombia. The current

Government of Colombia has formally asked the Department of State to take the steps necessary

to have this subpoena quashed on the basis of former President Uribe's immunity from U.S.

jurisdiction as a former foreign head of state. A copy of the letter dated November 12, 2010 fromthe Ambassador from Colombia requesting that action is enclosed.

Taking into account the relevant principles of customary international law, and

considering the overall impact of this matter on the foreign policy of the United States, the

Department of State has determined that President Uribe enjoys residual immunity from this

Court's jurisdiction insofar as Plaintiffs seek information (i) relating to acts taken in his official

capacity as a government official; or (ii) obtained in his official capacity as a government

official.

Moreover, the Department of State believes that, in light of President Uribe's immunity

and for reasons of comity, the Court should initially stay President Uribe's deposition in this caseand direct plaintiffs first to explore other reasonably available means of gathering the evidence

they seek. The foreign policy interest of the United States favors avoiding unnecessary irritants in

our relations with Colombia. Plaintiffs' counsel has confirmed that plaintiffs have not yet

attempted to seek evidence from the Colombian government through the traditional means of

letters rogatory, or through other avenues that may be available under Colombian law. In our view,

such avenues may well provide a better way for plaintiffs to obtain the evidence they seek,




2

especially in light of President Uribe's testimonial immunity as indicated above.

Finally, it should be noted that many former heads of state, including former U.S.

Presidents, travel widely and often serve as unofficial spokesmen for their states. Reciprocal

courtesies would prevent U.S. Presidents from being subjected to subpoenas by private

defendants abroad when the information sought could be reasonably obtained by other means.

Accordingly, the Department of State requests that the Department of Justice submit to

the Court an appropriate filing setting forth this immunity determination.

Sincer

arold Hongj oh

The Legal Adviser




endey,F04.74kza4h)42 , ! 3 .

E. 177 9

November 12, 2010

B Y H A N D

The Ho norable Hillary ClintonUnited States Secretary of S tates

United States State Departmen t

2201 C S treet, NW

Washington DC 20520

Dear S ecretary Clinton:

The Embassy of the Republic of Colombia presents its compliments to the

Department of S tate. On behalf of the government of the R epubl ic of Colombia, I have

the honor o f notifying you of a recent effort to force former President Alvaro Uribe Velez

to testify in a civil litigation currently taking place in the U nited States.

On November 3, 2010 President Uribe received a subpoena as past of the

ongoing lit igation in the United States D istrict Court for the Northern D istrict of Alabam a

under the caption Giraldo, et al. v. Drumm ond Co mpa ny, Inv., et aL, Civi l Action No.7:09-cv-14 01 (sic). The subpoena, wh ich was issued by the United States Distr ict Courtfor the D istr ict of Columb ia, com pels President Ur ibe to be dep osed as p art of thisl it igat ion on Novem ber 22, 20 10 at 9:00am at the of f ices of Conrad & Scherer, LLP.According to a press release issued by plaintiffs' counsel the day after President Uribewas se rved w ith this subpoe na, plaintiffs intend to use this deposition to inquire aboutPresident Uribe's know ledge of "the extend of governm ent m ilitary support to p rotect the

Drummond mining faci l i t ies in Colombia, the relat ionship and level of cooperat ionbetween the m i li tary forces and the AU C, part icular ly in relat ion to the areas in C esarProvince where D rumm ond o perated, the mi l itary 's ro le in cover ing up wa s cr im escom mitted by the AUC , and the efforts by the Colomb ian governm ent during Mr. Uribe'stenure to suppress evidence of Drum mo nd's relationship to the AUC."Copies of both thesubpoena and press re lease are enclosed.

In response to this subpoena, my governm ent has instructed me to con vey to you

its unequivocal to retain and asset any and all imm unities applicable to President Uribeand to specifically request head-of-state immunity on his behalf.




Respectfully yours,

Gabriel Silva

Ambassador

e/n,4 a de WoevniA a

.,dh:/. /i,g: W

The Embassy understands that this des ignation of imm uni ty shou ld com e from the

Dep artme nt of State in the form o f a Suggestion of Imm unity letter. Thus, this Embass ykindly request the ass istance of the Dep artment of State in preparing a Suggestion ofImm unity letter to be s ubm itted to the Distr ict Court by the Attorney General , or hisdesignee, pursu ant to 28 U.S.C. § 517, and that the De partme nt of State take a l l steps

necessary to quas h this subpoena.

The Embassy wishes to stress the importance of this request and its deep

apprec iation of the prom pt attention of the D epartme nt of State

CC. Gregory Craig. Counsel for Pres ident Alvaro Uribe Vdlez

Attached.

Copy of the subpoena delivered to President Alvaro Uribe VêlezCopy of press release by Conrad & Scherer




Conrad & SchererAttorneys at Law

F t. Lauderdale, Florida • Washington, DC • Quito, Ecuador

Novem ber 3, 2010

HAND-DELIVERED

ATTENTION:Alvaro Uribe Velez

Dear Mr. Uribe:

As per the a ttached subpoena in the Drummond l it igation, we have scheduled your

deposit ion for M onday, Novem ber 22 a t 9 :00 am in my off ice . If that date is not convenient foryou, please contact my office and we can reschedu le for a mu tually-conven ient t ime. Othe rwise, Ilook forward to seeing you on No vember 22.

Sincerel

ce1 ingsworth

Establ ished 1974Rex Conrad 1935-1999 • Wil liam Scherer

Conrad & S cherer, LLP • 1156 15th St. NW, Suite 502, Washington, DC 20005

Phone 202.543.4001 • Fax 1.866.803.1125

www.conradscherer.com




AO 88A (Rev. 06/09) Subpoena to Testify at a Deposition in a Civil Action

UNITED STATES DISTRICT COURTfor the

District of Columbia

)

)

CLAUDIA B ALCERO GIRALDO, et al .,

Plaintiff

v . Civil Action No. 7:09-cv-1041-RDP

DRUMMOND COMPA NY, Inc., et a l .)) (If the action is pending in another district , state where: Defendant )Northern District of Alabama

SUBPOENA TO TESTIFY AT A DEPO SITION IN A CIVIL ACTION

To: Alvaro U ribe Velez, Inter-Cultural Center, Georgetown Universi ty, ICC 223B, 3800 Rese rvoir Road NW,Wa shington, D.C. 20007

Testimony: YOU ARE COMMANDED to appear a t the time, date, and place set forth below to testify at a

deposition to be taken in this civil action. If you are an organization that is not a party in this case, you must designate

one or m ore officers, directors, or managing agents, or designate other persons w ho consent to testify on your beh alf

about the following matters, or those set forth in an attachment:

Place: Conrad & Sc herer, LLP1156 15th Street NW, Suite 502Washington, D.C. 20005

Date and Time:

11/22/2010 9:00 am The depos ition will be rec orded b y this method: audiovisual and stenographic means

0 Production: You, or y our representatives, must also bring with you to the deposition the following docum ents,electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of thematerial:

The p rovisions of Fed . R. C iv. P. 45(c), relating to your protection as a person subject to a subpoena, and Ru le45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not do ing so, areattached. 1

Signature of Clerk or Deputy ClerkA t t o r n e y s signature

Date:10/26/2010 CLERK OF COURT

The nam e, address, e-mail, and telephone num ber of the attorney representing (name ofparty)

CLAUDIA BALCERO GIRALDO, et al. , who issues or requests this subpoena, are:Terrence P. Collingsworth, Conrad & S cherer LLP1156 15th St. NW , Suite 502, Wa shington, D.C. 20005P: 202-543-4001, F:1-866-8031125




• •-AO 88A (Rev. 06/09) Subpoena to Testify at a Deposition in a Civil Action (Page 3)

Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)

(c) Protecting a Person Subject to a Subpoena.

(1) Av oiding Undue Burden or Expense; Sanctions. A party orattorney responsible for issuing and serving a subpoena must takereasonable steps to avoid imposing undue burden or expense on a

person subject to the subpoena. T he issuing court must enforce th isduty and impose an ap propriate sanction — which may include lostearnings and reasonable attorney 's fees — on a party or attorneywho fai ls to comp ly .

(2) Com mand to Produce M aterials or Permit Inspection.

(A ) Appearance Not Required. A person commanded to producedocuments , electronically s tored information, or tangible things, orto permit the inspection of premises, need not appear in person at theplace of production or inspection unless a lso comman ded to appearfor a deposition, hearing, or trial.

(B ) Objections. A person commanded to produce documents ortangible things or to permit inspection may serve on the party orattorney designated in the subpoena a wri tten objection toinspecting, copying, testing or sam pling any or all of the m aterials orto inspecting the prem ises — or to producing electronically s tored

information in the form or form s requested. The objection mu st beserved before the earlier of the t ime specif ied for compliance or 14

days af ter the subpoena is served. If an objection is made, thefollowing rules apply :

(i ) At any t ime, on notice to the comm anded person, the servingparty may move the issuing court for an order compelling productionor inspection.

(ii) These acts may be required only as directed in the order, andthe order must p rotect a person who is nei ther a party nor a party 'soff icer from significant expense resulting from compliance.(3) Quashing or M odifying a Subpoena.

(A) W h e n R e q u i re d On timely motion, the issuing court mustquash or mod ify a subpoena that :

(i ) fai ls to allow a reasonable t ime to co mply ;(ii) requires a person wh o is neither a party n or a party 's off icer

to travel more than 100 miles from where that person res ides , isemployed, or regularly transacts business in person — except that,subject to Rule 45(c)(3)(B)(i i i) , the person may be comm anded toattend a tria l by traveling from any such place within the s tate wherethe tria l is held;

(iii) requires disc losure of privi leged or other protected m atter , ifno exception or w aiver applies ; or

(iv) subjects a person to undue burden.(B) W h e n Pe rmi t te d . To protect a person su bject to or affected by

a subpoena, the issuing court may, on motion, quash or m odify thesubpoena if i t requires :

(i ) disclosing a trade secret or oth er conf idential research,development, or comm ercia l information;

(ii) disclosing an unretained expert 's opinion or information thatdoes not describe specific occurrences in dispute an d results from

the expert 's s tudy that w as not requested by a p arty ; or(iii) a person w ho is neither a p arty nor a party 's off icer to incur

substantial expense to travel more than 100 m iles to attend tria l.(C ) Spec i f y i ng Cond i t i ons as an A l t ernat i ve . In the circumstances

described in Rule 45(c)(3)(B), the court may, instead of q uashing ormodify ing a subpoena, order appearance or production und erspecif ied conditions if the serving party :

(i ) shows a substantial need for the testimony or m aterial thatcannot be otherwise met without undu e hardship; and

(ii) ensures that the subpoenaed person will be reasonablycompensated.

(d) Duties in Responding to a Subpoena.

(1 ) Producing Documents or Electronically Stored Information.These procedures apply to producing docum ents or electronicallystored information:

(A ) D o c u m e n t s . A person responding to a subpoena to producedocum ents must produ ce them as they are kept in the ordinarycourse of business or mu st organize and label them to correspond tothe categories in the dem and.

(B ) Form for Producing Electronically Stored Information Not

Specified If a subpoena does n ot specify a form for producingelectronically s tored information, the person responding mustproduce i t in a form or forms in w hich i t is ordinarily maintained orin a reasonably usable form or forms.

(C ) Electronically Stored Information Produced in Only One

Form. The person responding need not produce the sam eelectronical ly stored information in m ore than one form.

(D ) Inaccessible Electronically Stored Information. The personresponding need not p rovide discovery of electronically s toredinformation from sou rces that the person identif ies as not reasonably

accessible because of undue burden or cost . O n motion to com peldiscovery or for a protective order, the person responding mu st showthat the information is not reasonably access ible because of undueburden or cost . If that showing is m ade, the court may no nethelessorder discovery from such sources if the requesting party showsgood cau se, considering the l imitations of R ule 26(b)(2)(C). Thecourt may specify conditions for the discovery .(2) Claiming Privi lege or P rotection.

(A) I n fo rm at io n W ithh e ld . A person withholding subpoenaedinformation under a c la im that i t is privi leged or subject toprotection as tria l-preparation m aterial must:

(i ) express ly make the c laim; and(ii) describe the nature of the withheld docum ents,

commu nications, or tangible things in a manner that, withoutrevealing information i tself privi leged or protected, will enable the

parties to assess the c laim.(B ) Information Produced. If information produced in response to a

subpoena is subject to a claim of privilege or of protection as trial-preparation material , the person making the c laim may notify anyparty that received the information of the cla im and the basis for i t .After being notif ied, a party must prom ptly return, sequester, ordestroy the specif ied information and any cop ies i t has ; must not useor disc lose the information unti l the c laim is resolved; must takereasonable s teps to retrieve the information if the party d isc losed i tbefore being notif ied; and m ay promptly present the information tothe court under seal for a determination of the cla im. The personwho produced th e information must preserve the information unti lthe c laim is resolved.

(e) Contempt. The issuing court may hold in contempt a person

who, having been served, fai ls without adequate excuse to obey thesubpoena. A nonparty 's fai lure to obey must be excused if thesubpoena purports to require the nonparty to attend or produce at aplace ou tside the l imits of Rule 45(c)(3)(A)(i i).




Conrad & SchererAttorneys at Law

Ft. Lauderdale, Flor ida • Washington, DC • Quito, Ecuador

of D irjrrr •Adent ri e

Contact:Terry Collingsworth, Counsel for Plaintiffs

Conrad & Scherer 202 -543-5811 (office); 202 -255-2198 (mobile)

In 2009, nearly 500 family members of Colombian citizens who were murdered by

paramilitary forces during the C olombian civil conflict brought a federal lawsuit inBirmingham, Alabama against Drummond Company, Inc. for its role in supporting warcrimes. The Plaintiffs discovered significant evidence that Drum mond m ade an explicitagreement in 1.999 with the main paramilitary group, the United Self Defense Forces of

Colombia ("AUC"), that Drummond would provide significant funding and other supportto the A UC to allow the AU C to escalate its civil war with the primary guerilla group in

Colombia, the Revolutionary Armed Forces of Colombia ("FARC"). This support

continued until 2007 , well after the AU C was designated a terrorist organization in 2 001

by the U.S. State Department.

Drum mond's direct support to a terrorist organization made it an aider and abetterand co-conspirator with the A UC in its brutal attacks on innocent civilians, including themurdered re latives of the Plaintiffs. The federal court in this case ruled on Ap ril 30, 201 0that Plaintiffs had stated a viable claim against Drum mond, and the case is now in thediscovery phase.

The Drummond Plaintiffs have subpoenaed former Colombian President Uribe

during his stay in the U nited States to compe l his attendance at a formal deposition in thecourt case. Mr . Uribe has direct know ledge of several key issues in the case, including theextent of governm ent military support to protect the Drumm ond mining facilities inColombia, the relationship and level of cooperation betwe en the m ilitary forces and theAUC, particularly in relation to the areas in Cesar Province where Drummond operated,the military's role in covering up war crimes committed by the AUC, and the efforts bythe Colombian government during Mr. Uribe's tenure to suppress evidence ofDrummond's relationship to the A UC.

The deposition of Mr. U ribe is scheduled for M onday, November 2 2 at theW ashington, D.C. offices of Conrad & S cherer.

Established 1974Rex Conrad 1935 -1999 • W illiam Scherer

Conrad •St Sch erer, LLP • 1156 15th St. NW, Suite 502, Washington, DC 20005

Phone 202.543.4001 • Fax 1.866.803.1125

www.conradscherer.com
