United States District Court, S.D. Florida
ORDER GRANTING PLAINTIFFS' MOTION IN LIMINE TO
EXCLUDE REFERENCE TO AKIN GUMP'S REPRESENTATION OF THE
GOVERNMENT OF BOLIVIA
I. COHN UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Plaintiffs'
Motion to Exclude Reference to Akin Gump's Representation
of the Government of Bolivia [DE 357 in Case No. 07-22459; DE
335 in Case No. 08-21063]
(“Motion”). The Court has considered the Motion,
Plaintiffs' Response and Defendants' Reply, the
parties' related submissions, and the record in these
cases, and is otherwise advised in the premises. For the
reasons stated below, Plaintiffs' Motion is granted.
1995, during the first presidential term of Defendant Lozada,
the Government of Bolivia retained Akin Gump Strauss Hauer
& Feld LLP (“Akin Gump”) as legal counsel in
connection with an ongoing plan to capitalize the
nation's energy resources. DE 357 at 2-3; DE 380 at 1-2
(the “Legal Representation”). The Legal
Representation lasted roughly three years. In 2002, during
the second presidential term of Defendant Lozada, the
Government again consulted Akin Gump, this time in connection
with a proposed (but ultimately unconsummated) agreement for
Akin Gump to provide lobbying services in Washington, D.C.
(the “Lobbying Proposal, ” and, together with the
Legal Representation, the “Representations”). DE
357 at 2; DE 380 at 5-6. Akin Gump now serves as pro
bono counsel to Plaintiffs. DE 357 at 1.
the discovery process in these cases, Defendants served a
subpoena upon Akin Gump, seeking documents pertaining to the
Representations. Id. They also pursued the topic in
several witness depositions. Id. at 2-4. Plaintiffs
now move pursuant to Federal Rules of Evidence 402 and 403 to
exclude any evidence regarding the Representations. They
argue that such evidence is irrelevant, because the
Representations have no bearing one way or the other on the
issues actually in dispute in these cases: namely, whether
the deaths of Plaintiffs' eight specific decedents in
October 2003 meet the TVPA's definition of
“extrajudicial killing, ” and, if so, whether
Defendants can be held vicariously liable for them.
Id. at 4-6. Plaintiffs also maintain that such
testimony would prove unduly prejudicial and confusing and is
being proffered largely to distract the jury's attention
from the disputed issues. DE 389 at 1-4.
respond that evidence regarding the Representations is
“relevant to rebutting Plaintiffs' . . . argument
that Defendants sought to use unlawful means to implement the
gas exportation plan.” DE 380 at 7-8. In other words,
Plaintiffs' theory of the case-as Defendants characterize
it-holds that the 2003 gas export plan (which precipitated
the protests that resulted in Plaintiffs' decedents'
deaths) was an improper, perhaps illegal, enterprise
undertaken by the administration of Defendant Lozada.
Evidence that the Bolivian government obtained legal advice
from a reputable international law firm would, accordingly,
tend to rebut Plaintiffs' theory.
401 defines relevant evidence as evidence “ha[ving] any
tendency to make a [consequential] fact more or less probable
than it would be without the evidence.” Rule 402
provides that relevant evidence is generally admissible,
while irrelevant evidence is inadmissible. Rule 403 provides
that relevant evidence can be excluded “if its
probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”
Court finds that evidence regarding the Representations is
irrelevant, unduly prejudicial, confusing, and misleading.
The Representations have no bearing one way or the other on
the question of responsibility for the deaths of
Plaintiffs' decedents. While the Court agrees with
Defendants that evidence from Plaintiffs regarding the merits
of the gas plan, whether the gas plan was lawful, and tending
to cast aspersions upon Defendants' motives in pursuing
the gas export plan would warrant rebuttal, Plaintiffs
represent that Defendants mischaracterize their position and
that they do not intend to adduce such evidence. DE 389 at
2-3. Instead, Plaintiffs maintain that Defendants'
wrongdoing was in formulating and implementing a plan to
forcefully quell the civil unrest that they anticipated would
arise in response to the gas export plan, not in pursuing the
gas export plan itself. Id.
Court takes Plaintiffs at their word that they will hew to
this position at trial. However, to avoid any confusion, the
Court cautions Plaintiffs that it considers evidence
regarding the merits of the gas export plan, the lawfulness
of the gas export plan, Defendant's motives in pursuing
the gas export plan, or similar questions, to be irrelevant
and hence objectionable. Accordingly, there is nothing for
Defendants to rebut via evidence of the Representations.
light of the foregoing, it is thereupon ORDERED AND
ADJUDGED that Plaintiffs' Motion [DE 357 in Case
No. 07-22459; DE 335 in Case No. 08-21063] is
GRANTED. Defendants are precluded from
introducing any evidence regarding Akin Gump Strauss Hauer
& Feld's prior legal representation of, and proposed
lobbying arrangement on behalf of, the Government of Bolivia.