UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No 08-01916-MD-MARRA JOHNSON IN RE CHIQUITA BRANDS INTERNATIONAL INC ALIEN TORT STATUTE AND SHAREHOLDER DERIVATIVE LITIGATION ___________________________________________________________ This Document Relates To ATS ACTIONS 08-80421-CIV-MARRA 08-80508-CIV-MARRA 10-60573-CIV-MARRA ___________________________________________________________ DECLARATION OF MICHAEL EVANS I Michael Evans declare as follows 1 I am a senior analyst and director of the National Security Archive's Colombia and Mexico documentation projects The facts stated herein are based on my personal knowledge If called upon to do so I could and would competently testify thereto 2 The National Security Archive the Archive is a non-profit organization founded in 1985 by journalists and scholars The primary objective of the Archive is to promote transparency and combat excessive government secrecy The Archive is based out of the Gelman Library at The George Washington University and houses millions of pages of declassified documents obtained and organized by the Archive's staff The Archive has successfully and frequently employed the U S Freedom of Information Act FOIA to obtain declassified United States government documents 3 As part of the Archive's Colombia Project we have collected analyzed and compiled thousands of declassified U S government documents related to payments made by Chiquita Brands International Chiquita to guerrilla groups paramilitaries and governmental actors in Colombia That publicly-available compilation - The Chiquita Papers - includes 1 documents obtained through FOIA requests from the Department of Justice DOJ the Federal Bureau of Investigation FBI and the Department of State DOS 4 In November 2008 the Archive submitted two FOIA requests to the U S Securities and Exchange Commission SEC requesting the production of all records held by the SEC relating to 1 the criminal investigation which led to Chiquita's 2007 guilty plea for making payments to a designated terrorist organization 2 the SEC investigation of bribes paid by Chiquita to Colombian officials that resulted in an October 2001 judgment against the company for books and records and internal control violations and 3 SEC records pertaining more generally to the finances of Banadex formerly Chiquita's wholly-owned subsidiary in Colombia Many of these records are documents that Chiquita was forced to turn over during the course of criminal and regulatory investigations conducted by DOJ FBI and SEC The SEC produced 14 batches of documents in response to our requests hereinafter the SEC Production Chiquita opposed the release of the 13th and 14th SEC productions and sued SEC to prevent them from being handed over to the Archive On July 17 2015 the U S Court of Appeals for the District of Columbia Circuit held that the SEC should produce the documents over Chiquita's objections SEC delivered the 13th and 14th productions to the Archive on September 15 2015 and October 1 2015 respectively On December 31 2015 the Archive filed an appeal with the SEC challenging certain redactions and withholdings from the 14th SEC Production Exhibit 3-A 5 The Archive is reviewing the SEC Production and will make them publicly available on the Archive's Web site after that review is complete 6 After reviewing the 14 batches of documents in the SEC Production earlier FOIA productions from DOJ DOS and FBI the Report of the Special Litigation Committee In re Chiquita Brands Int'l Inc Alien Tort Statute and Shareholder Derivative Action Case No 0 08-md2 09160KAM D E 202-4 hereinafter the SLC Report and other relevant material I have concluded to a reasonable degree of certainty that a The individual pseudonymously named Chiquita Employee #2 in the SLC Report is in fact John Ordman a former Senior Vice President for the Chiquita Fresh Group See Exhibit 3-A at 8 b The individual pseudonymously named Chiquita Employee #3 in the SLC Report is in fact John Paul Olivo Colombian operations controller from 1996 until December 2001 Id at 8 c The individual pseudonymously named Banadex Employee #1 in the SLC Report is in fact Charles Keiser General Manager of Banadex from 1989 until February 2000 d The individual pseudonymously named Banadex Employee #3 in the SLC Report is in fact Juan Manuel Alvarado Mr Alvarado was Security Manager for Banadex from March 1992 until October 1999 e And the individual pseudonymously named Banadex Employee #10 in the SLC Report is in fact Alvaro Acevedo Gonzalez Mr Gonzalez was General Manager of Banadex from November 2001 until June 2004 7 Between 1999 and 2000 the SEC conducted depositions of at least seven Chiquita employees in connection with its investigation of evidence that Chiquita paid bribes to a Colombian customs official Transcripts of these seven depositions were included in the 14th SEC production The names of the deponents were redacted from the transcripts but I have cross-referenced the testimony with other publicly available documents including the SLC Report and to a reasonable degree of certainty have concluded the following 1 1 A full explanation for my conclusions is attached as Exhibit 3-A which is my administrative appeal to the SEC seeking removal of certain redactions and additional productions 3 a The witness deposed by the SEC on February 8 1999 is Wilfred Bud White Mr White was Chiquita's Vice President of Internal Audit from 1988 until 1997 b The witness deposed by the SEC on April 27 1999 is Jorge Forton Mr Forton oversaw Chiquita's financial operations in Colombia from 1994 to 1998 c The witness deposed by the SEC on May 24 1999 is Orlando J Dangond Mr Dangond was Manager Materials and Supplies for Chiquita's operations in Colombia for the Santa Marta Division between October 1991 and December 1994 and for all Chiquita's Colombian operations between January 1995 and August 1997 d The witness deposed by the SEC on November 23 1999 is John Ordman Mr Ordman was Senior Vice President of European Banana Sourcing for the Chiquita Fresh Group and reported to Robert F Kistinger e The witness deposed by the SEC on December 2 1999 is William Tsacalis I understand that Mr Tsacalis is a defendant in this litigation f The witness deposed by the SEC on December 15 1999 is John Paul Olivo Mr Olivo was Colombian operations controller from 1996 until December 2001 g The witness deposed by the SEC on January 6 2000 is Robert F Kistinger I understand Mr Kistinger is a defendant in this litigation 8 I certify that Exhibit 3-A is a true and correct copy of the administrative appeal submitted to the SEC FOIA office on December 31 2015 by the Archive 9 I certify that Exhibit 3-B is a true and correct copy of pages from the 14th batch of the SEC Production 10 I certify that Exhibit 3-C is a true and correct copy of a document produced by the SEC as part of the 5th production it contains handwritten notes from an anonymous Chiquita 4 employee 11 I certify that Exhibit 3-D is a true and correct copy of documents produced by the SEC as part of the 13th production it includes spreadsheets and handwritten notes from an audit of the Colombian General Manager's account reflecting sensitive payments made by Chiquita including to the Convivir groups 12 I certify that Exhibit 3-E is a true and correct copy of a document produced by the SEC as part of the 5th production it is a copy of a memo produced by Steven Kreps and circulated on November 30 1999 regarding Accounting for Confidential Payments 13 I certify that Exhibit 3-F is a true and correct copy of documents produced by the Department of Justice in response to our FOIA requests it contains internal audit forms of the Colombian General Manager's account signed by Bret Jacobs 14 I certify that Exhibit 3-G is a true and correct copy of a document produced by the SEC as part of the 5th production it is an email from Steven Kreps to Alvaro Acevedo and Manrique Ugalde regarding FCPA information dated November 26 2001 15 I certify that Exhibit 3-H is a true and correct copy of a document produced by the SEC as part of the 13th production it includes an SEC transcription of a Chiquita voicemail tape from 1997 16 I certify that Exhibit 3-I is a true and correct copy of a document produced by the SEC as part of the 13th production it is a copy of handwritten notes from 2002 regarding Chiquita's sensitive payment procedures 17 I certify that Exhibit 3-J is a true and correct copy of a document produced by the SEC as part of the 13th production it is a copy of General Manger's expense sheets with handwritten notes which refer to Juan Manuel Alvarado 18 I certify that Exhibit 3-K is a true and correct copy of a document produced by the 5 Department of Justice in response to our FOIA requests it is a copy of a draft memo from September 2000 regarding Colombia Security 19 I certify that Exhibit 3-L is a true and correct copy of a document produced by the SEC as part of the 5th production it is a copy of an email from Fuad Giacoman from January 15 2003 regarding payments from the Manager Fund 20 I certify that Exhibit 3-M is a true and correct copy of a document produced by the Department of Justice in response to our FOIA requests it is a copy of memo distributed on January 5 1994 with handwritten notes regarding Reportable Payments in Colombia and Manager's Expense Payments 21 I certify that Exhibit 3-N is a true and correct copy of a document produced by the SEC as part of the 13th production it is a copy of a memo from David Hills dated July 11 2001 regarding Colombian Port Issues I declare under penalty of perjury that the foregoing is true and correct Executed in Washington DC on March 8 2016 By _________________ MICHAEL EVANS 6                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu