montgomery v risen # 164 | p objection to mj order re deadline for source code

8/20/2019 Montgomery v Risen # 164 | P Objection to MJ Order Re Deadline for Source Code

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IN UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 15-cv-20782-Martinez-Goodman

DENNIS MONTGOMERY,

Plaintiff,v.

RISEN, ET AL.

Defendants. _____________________________/

PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE’S ORDER OFOCTOBER 19, 2015 AND REQUEST TO STAY

Pursuant to Federal Rules of Civil Procedure (“FRCP”) 59 and 72, which govern a

district court’s consideration of a party’s objection to a magistrate judge’s order, Plaintiff Dennis

Montgomery (“Plaintiff”) hereby respectfully objects to Magistrate Judge Jonathan Goodman’s

Order of October 19, 2015 (“Order”) (Exhibit 1), to the U.S. District Court for the Southern

District of Florida (“District Court”) and requests the presiding judge stay the implementation of

this portion of the order until such time that this motion is heard and decided by the District

Court. 1

Plaintiff specifically objects to the portion of the Order dealing with the deadline of

October 26, 2015, to produce any as yet undetermined non-classified software and related

documents to Defendants. Plaintiff has fully complied with all other aspects of the Order and has

made a good faith effort to comply with Magistrate Judge Goodman’s orders despite having very

1 Plaintiff has previously filed an objection pursuant to FRCP 59 and 72 that is still pending before this Court with regard to the relevancy and other issues concerning the alleged software atissue. See Docket No. 125.

Case 1:15-cv-20782-JEM Document 164 Entered on FLSD Docket 10/26/2015 of 14



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recently been back in the hospital. Plaintiff recently suffered another severe, life-threatening,

medical setback related to his potentially fatal brain aneurism and may need another operation.

See Exhibit 2.

Plaintiff is an expert on encryption who previously was employed by companies that

provided decryption technology and software for U.S. intelligence agencies such as the National

Security Agency (“NSA”) and the Central Intelligence Agency (“CIA”) to decipher coded

messages by Osama Bin Laden and other terrorist groups through broadcasts made on Al-Jazeera

television. Defendants defamed Plaintiff by publishing in Florida, nationally, and internationally

that Plaintiff is a con-artist, a fraud, a hoax, and dishonest, among a myriad of other false andmisleading published statements.

In his capacity as an expert working with the NSA, CIA, and Defense Intelligence

Agency (“DIA”), Plaintiff was granted a Special Access Programs (“SAP”) security clearance

and thus was able to view, access, and retain classified information. During the course of his

work for the NSA, CIA, and other intelligence agencies, Plaintiff saw evidence of illegal and

unconstitutional surveillance on the American people and felt a moral obligation, despite his

severe disabilities including a potentially fatal brain aneurism, to become a whistleblower and a

government witness in order to shed light on, expose, and remedy the unconstitutional actions of

the intelligence agencies. Plaintiff came forward and began his work as a whistleblower and a

government witness before this lawsuit had originated and has been in the process of coming

forward with his information for years, well before this lawsuit was conceived of or filed. In

conjunction with the Director of the Federal Bureau of Investigation (“FBI”), the Honorable

James Comey, and the FBI’s General Counsel, James Baker, as well as the Honorable Royce C.

Lamberth, U.S. District Court Judge for the District of Columbia and Assistant U.S. Attorney




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Deborah Curtis, who is a renowned federal government national security legal expert and

prosecutor, a process was created for Plaintiff to legally provide all his information to the FBI.

Plaintiff negotiated a production immunity agreement wherein he could legally turn over all the

information in his possession to the FBI. See Docket No. 158 – Motion to File Under Seal.

As a result, and pursuant to law, Plaintiff turned over all information of the widespread

illegal surveillance by governmental agencies such as the NSA, CIA, and DIA. This information

consisted of 47 hard drives containing 51.6 million files, amounting to 600 million pages of

documents. The FBI, through Mr. Baker, has indicated that: “[i]n the event the software is

located, appropriate U.S. Government agencies and/or departments will conduct a classificationreview of the software. These security measures are necessary based on the representations made

by Mr. Montgomery that classified information resides throughout the drives.” Exhibit 10 at pp.

4.

Plaintiff’s counsel and his paralegal, Ms. Dina James, met with Ms. Curtis on July 28,

2015, and then subsequently Plaintiff and his counsel and his paralegal met with Ms. Curtis and

agents from the FBI on August 19, 2015 at the FBI’s Miramar, FL building. Prior to the meeting

with the FBI, Ms. Curtis emailed Plaintiff’s counsel to give a preview of what questions would

be asked at the meeting at the Miramar. At the meeting, Plaintiff answered all questions posed to

him.

During both meetings with Ms. Curtis, Plaintiff’s counsel informed Ms. Curtis that there

was ongoing litigation with regard to Defendant’s book, Pay Any Price: Greed, Power and

Endless War . See Affidavit of Larry Klayman (Docket No. 126). Specifically, Plaintiff’s

counsel stated the following in his affidavit:

During our first meeting, I explained to Ms. Curtis that my client, Mr. DennisMontgomery, was involved in civil litigation with James Risen and his publishing




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companies over allegations that Mr. Montgomery had been defamed. The primarylibel occurred in his recently published book called Pay Any Price: Greed, Power,and Endless War.

I again advised Ms. Curtis and the agents that were present, Walter B. Giardina,

Supervisory Special Agent, and William J. Barnett, Special Agent, that thelitigation was going forward and that Mr. Montgomery was being deposed thefollowing day by counsel for Mr. Risen and his publishers.

I told Ms. Curtis that I would be careful not to have Mr. Montgomery disclose anyclassified information during his deposition. I also advised her that Defendantshad raised the issue of his alleged software and wanting to get access to it, but thatwe were taking the position that it was irrelevant. See Objection to Portions ofMagistrate Judge's Order of August 22, 2015 [Dkt # 125].

In this context, I asked Ms. Curtis if Mr. Montgomery could have access to

anything that was not considered to be classified contained in the hard drives,including any unclassified software should it have to be produced, and that wasnot considered contraband. I further asked her and the FBI agents to determine ifit is classified. She agreed on behalf of the U.S. Department of Justice, should ithave to be produced in the civil litigation concerning Mr. Risen and his

publishers.

Affidavit of Larry Klayman (Docket No. 126) at pp. 2-3 (Exhibit 3). Ms. Dina James, paralegal

for Plaintiff’s counsel, was also present at these meetings and submitted an affidavit that

corroborated the statements made by Plaintiff’s counsel at this meeting. See Exhibit 4.

Mr. James Baker of the FBI subsequently emailed Plaintiff’s counsel on September 8,

2015, seeking assistance in the search for the software at issue. Plaintiff’s counsel timely

provided information to Mr. Baker as requested. An additional email was sent by Mr. Ted

Schwartz, Assistant General Counsel for the FBI, on October 1, 2015. Although seriously ill,

Plaintiff, through counsel, once again provided the additional information requested in order to

aid in the search for the software at issue. Copies of these correspondences have been filed along

with a motion to file under seal (Docket No. 158). Plaintiff has thus made a good faith effort and

has fully cooperated with the FBI’s search for the software at issue.




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Even more, in compliance with Magistrate Judge Goodman’s Order of October 19, 2015,

Plaintiff also provided further instructions to the FBI by email, a copy of which was filed along

with a motion to file under seal on October 22, 2015 (Docket No. 160). Plaintiff’s counsel then

followed up with the FBI with a phone call to facilitate pinpointing any software, if it existed.

During discovery, Defendants propounded a request for production of documents which

sought a copy of Plaintiff’s alleged software. Plaintiff first objected to this request for

production, and the parties eventually were forced to take the matter before Magistrate Judge

Jonathan Goodman. A hearing was held on this and other issues on October 16, 2015, and

Magistrate Judge Goodman issued a Post Discovery Hearing Administrative Order on October19, 2015 (Docket No. 154).

On October 19, 2015, Magistrate Judge Jonathan Goodman issued the following

order:

Plaintiff shall, by October 26, 2015, produce the software at issue in this case toDefendants. If the software is not turned over by this date and Defendants seeksignificant sanctions (i.e. dismissal or an adverse inference), then Defendants mayfile a motion and/or memorandum of law if they are still seeking sanctions. IfDefendants file a motion, then the Undersigned will issue a briefing scheduleorder.

See Docket No. 154 – Post Discovery Hearing Administrative Order.

Plaintiff respectfully objects to Magistrate Jonathan Goodman’s Order on the basis that

he will be unable to provide the software at issue, if any, by October 26, 2015, and on other

grounds as set forth below.

Plaintiff has submitted an affidavit, sworn to under penalty of perjury, stating that:

Based on my personal knowledge and belief, upon searching my memory, I donot believe that I have had access to any of the subject software, nor did I provideit to the Federal Bureau of Investigation ("FBI") when I turned over the drives

pursuant to my immunity agreement of July 28, 2015 and the inventory of what Iturned over.




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See Exhibit 5 – Affidavit of Dennis Montgomery. As shown, Plaintiff is not even sure if the

documents and other things provided to the FBI contain the software at issue. Nonetheless,

Plaintiff has made a good faith effort and has given his full cooperation to the FBI and the U.S.

Attorney’s office in order to assist in the search for any software at issue to aid in the

determination of whether the software is present in the documents and other things that were

provided to FBI, and if they are classified. Exhibit 10.

Plaintiff has facilitated, despite his failing health, the providing of the software, if any, by

the FBI. As the FBI made clear in its’ letter of September 8, 2015, Plaintiff provided the FBI

with “hard drives contain[ing] 51.6 million files amounting to 600 million pages.” See Letter of

James Baker (Docket No. 126). The FBI is working with due speed to search through the

millions of files in order to determine whether such software does exist in the documents

provided by Plaintiff. After such a determination is made, the FBI must then determine whether

the software, if any, is classified in nature.

Further, as stated above, Plaintiff is not in possession of the software at issue, if any such

software exists in the files provided to the FBI, and is not able to provide it to Defendants. As

set forth in Federal Rules of Civil Procedure 34, a party is only required “to produce and permit

the requesting party or its representative to inspect, copy, test, or sample the following items in

the responding party's possession, custody, or control” (Emphasis added). See also Searock v.

Stripling , 736 F.2d 650 (11th Cir. 1984) (“Rule 34(a) requires the responding party to produce

not only responsive documents in his possession, but also those in his control. Fed. R. Civ. P.

34(a) (a party may discover documents "which are in the possession, custody or control of the

party upon whom the request is served"). The Eleventh Circuit has defined "control" as the legal

right to obtain documents upon demand.)).




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In Thermoset Corp. v. Bldg. Materials Corp. , No. 14-60268 (S.D. Fla., Nov. 18, 2014),

the U.S. District Court for the Southern District of Florida, this Court, denied a motion to compel

on the grounds that the party represented that the documents did not exist. Id. citing Bank of

New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 152 (S.D.N.Y. 1997). ("Under

ordinary circumstances, a party's good faith averment that the items sought simply do not exist,

or are not in his possession, custody or control, should resolve the issue of failure of production. .

. .").

Defendants have raised the issue of the software simply to try to “throw a monkey

wrench” into this lawsuit in an attempt to use it as a way to get this lawsuit dismissed. However,the issue of the software is nothing more than a red herring, and the software at issue is not even

relevant to this lawsuit. Defendants, in their Motion to Dismiss (Docket No. 52) admit and

concede that Defendants’ book, written by Defendant Risen, was based on previously published

articles by Bloomberg News and Playboy and non-classified public court and congressional

records. Specifically, in their Motion to Dismiss, Defendants stated:

Risen expressly acknowledges in the Book that he relied on the Playboy Articleand New York Times Article. (Book at 53.) The Book added Montgomery’sdenials to the narrative, obtained after Risen interviewed him. ( Id . at 33-34, 37,51, 53).

Motion to Dismiss (Docket No. 52) at pp. 10. Further, Defendants admitted and conceded:

2. Reliance on FBI Reports, Court Documents, and Congressional Recordsfor Allegations of Fake Software

As with his New York Times Article and prior media accounts, Risen primarily based the Chapter on court records and other official documents. The Chapterrefers to FBI interviews of Warren Trepp, Montgomery’s partner in the softwareventure, eTreppid, and its employees. The Book expressly states that, “accordingto court documents that include his statements to the FBI,” Montgomery’ssoftware was fake because “Trepp later told the FBI that he eventually learnedthat Montgomery had no real computer software programming skills.” (Book at37.)10 Similarly, the Chapter accurately quotes statements in FBI reports in which




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an eTreppid employee Sloan Venables began to suspect Montgomery’s softwarewas fake. Venables “ told the FBI that another employee, Patty Gray, began tosuspect that Montgomery ‘was doing something other than what he was actuallytelling people he was doing’” and “added in his statement to the FBI that he knewthat ‘Montgomery promised products to customers that he had not been

completed or even assigned to programmers.’” (Book at 48-49) (emphasis added).

Then, citing court documents, the Chapter states: “Over the Christmas holidays[of 2005], Montgomery allegedly went into eTreppid’s offices and deleted all ofthe computer files containing his source code and software development data,according to court documents .” (Book at 49) (emphasis added). Later,“[a]ccording to court documents , [Trepp] told the FBI that Montgomery hadstolen the software eTreppid had used on secret Pentagon contracts” but “[a]sfederal investigators moved in to investigate the alleged theft of the technology,they heard from Trepp and others that Montgomery’s alleged technology wasn’treal.” ( Id. ) (emphasis added). The Chapter correctly summarizes FBI reports

contained in court records showing that the technology “wasn’t real.”Motion to Dismiss (Docket No. 52) at pp. 10-11. Defendants further admitted and

conceded:

The Book also expressly relies on congressional records to confirm thatMontgomery’s software was fake. The Book explains that, “[a]t the time of theChristmas 2003 scare, John Brennan was the head of the Terrorist ThreatIntegration Center,” which “meant that Brennan’s office was responsible forcirculating Montgomery’s fabricated intelligence to officials in the highestreaches of the Bush administration.” (Book at 47.) The Book states that, “[i]n2013, while the Senate was considering whether to confirm Brennan to run theCIA, Sen. Saxby Chambliss, a Georgia Republican who was vice chairman of theSenate Intelligence Committee, submitted a written question to Brennan about hisrole in the intelligence community’s dealings with Montgomery.” ( Id. ) Indeed,Senator Chambliss’ written question titled “Bogus Intelligence,” states that“[m]edia reports indicate that when you led the Terrorist Threat IntegrationCenter (TTIC), you championed a program involving IT contractors in Nevadawho claimed to intercept al-Qaida targeting information encrypted in the

broadcasts of TV news network Al Jazeera.” The written questions confirm incongressional records that not only “[t]he media” but “ documents we havereviewed show , that CIA officials derided the contractor’s information, butnonetheless, you passed it to the White House and alert levels ended up beingraised unnecessarily.” ( Id. ) (emphasis added). Accurately quoting Brennan’sresponse, the Book states that, “[i]n response”: (1) “Brennan denied that he had

been an advocate for Montgomery and his technology”; (2) “insisted that theTerrorism Threat Integration Center was merely a recipient of the information anddata, which had been passed on by the CIA”; (3) he “included Montgomery’s data‘in analytic products’”; and (4) confirmed that Montgomery’s purported software




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“‘was determined not to be a source of accurate information .’” (Book at 47)(quoting Brennan Response at 9) (emphasis added).

Motion to Dismiss (Docket No. 52) at pp. 12-13. Defendants further admitted and

conceded:

3. Reliance on FBI Reports and Court Documents for Allegations of RiggedDemonstrations of Software to U.S. Government Officials

The Book also explicitly relies on court records and FBI reports, in which “Treppalso described to federal investigators how eTreppid employees had confided tohim that Montgomery had asked them to help him falsify tests of his objectrecognition software when Pentagon officials came to visit.” (Book at 37.) Indeed,“Trepp said that on one occasion, Montgomery told two eTreppid employees togo into an empty office and push a button on a computer when they heard a beep

on a cell phone.” ( Id. ) Then “[a]fter he was in place in the field, he used a hiddencell phone to buzz the cell phone of one the eTreppid employees, who then pushed a key on a computer keyboard, which in turn flashed an image of a bazooka on another screen prominently displayed in front of the military officersstanding in another room, according to court documents .” ( Id. ) (emphasis added).Thus, “[t]he military officers were convinced that Montgomery’s computersoftware had amazingly detected and recognized the bazooka in Montgomery’shands.” ( Id. ) The Book again includes Montgomery’s denials. ( Id . at 15, 37.)Once again, the Book accurately describes the FBI report contained in courtdocuments.

Id. Indeed, Defendants based their pending motion to dismiss on the premise that no government

information, including any likely classified software, is necessary for the Court to consider

dismissing or trying this case before a jury. Defendants are talking out of both sides of their

mouths. They indicate that no classified material was used for the writing of Defendant Risen’s

book but are now stating that they need classified software.

Further, Defendant Risen’s deposition confirmed that he did not have access to any

classified information and not base his book on this. Specifically, as stated under oath in his

deposition taken on June 19, 2015:

Q And you say that based your reporting in part on stories written by others suchAram Roston of Playboy magazine who wrote a story, The Man Who Conned thePentagon?




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A Yeah. That was written long before our story.

See Exhibit 6 – Transcript of Risen Deposition at pp. 124:11 – 124-16.

Q Now Mr. Risen, is it correct that you -- other than what was testified to in frontof Congress which you claim was testified to references to documents at the CIA,you did not have access to any government documentation in writing your book,Pay Any Price?

A No, we did because there were lots of court records related to FBIinvestigations, Air Force investigations, lots of emails and other recordsrelated to and depositions, so there were many government documents thatwe relied on that were all public, had filed in court cases. And when, as Isaid, when the Senate Chambliss referred specifically

Q Now, the only documents you got were those documents that were public?A Court records, yes. Public court records.

Q Okay.

A And we didn't -- I didn't attribute anything to classified documents that Ihad obtained from the CIA directly in connection with this.

Id. at pp. 111:1 – 111-7. Since Defendant Risen admitted that he did not have access to

classified information, Defendant Risen would not have had, and did not have access to any such

software when he made the false and defamatory statements about Plaintiff. Thus, the software

is not relevant to this lawsuit and must not respectfully be produced by Plaintiff.

In addition, quite apart from lack of relevancy of any such software, after many months

of discovery, Defendants provided nothing more than the name of their purported expert witness

on the absolute last day of the deadline to designate experts which was on August 3, 2015. Their

12th hour action underscores how they allowed time to tick off for many months – again

confirming that their demand for classified software is simply a litigation tactic.

Federal Rule of Civil Procedure 26.1 provides, in pertinent part, the following:




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(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated orordered by the court, this disclosure must be accompanied by a written report—prepared andsigned by the witness—if the witness is one retained or specially employed to provide experttestimony in the case or one whose duties as the party's employee regularly involve giving experttestimony.

The report must contain:(i) a complete statement of all opinions the witness will express and the basis and

reasons for them;(ii) the facts or data considered by the witness in forming them;(iii) any exhibits that will be used to summarize or support them;(iv) the witness's qualifications, including a list of all publications authored in the

previous 10 years;(v) a list of all other cases in which, during the previous 4 years, the witness

testified as an expert at trial or by deposition; and(vi) a statement of the compensation to be paid for the study and testimony in the

case.Fed. R. Civ. P. 26.1 (Emphasis added).

Incredibly and disingenuously, Defendants stated in an accompanying email that they

were providing just the name of the expert witness. See Exhibit 7 – Email of Defendants’

counsel. However, Defendants still materially failed to provide information as unequivocally

required by FRCP 26.1. Defendants did not include (1) the purported expert’s qualifications, (2)

a list of all other cases within which the expert provided expert testimony, and (3) a statement of

the compensation to be paid for the study and testimony in the case. See Exhibit 8. All three of

these criteria were not met by the deadline of August 3, 2015.

Accordingly, even if such classified software existed in Plaintiff’s possession, control,

and/or custody, Defendants have forfeited the right and means to use it at trial or for any other

purpose since they forfeited their use of any expert to evaluate any software and waited until the

absolute last minute to provide just the name of their so-called expert. It is therefore apparent

that their professed desire for Plaintiff to produce any software is merely strategically designed

for ulterior irrelevant tactical purposes.




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Also of importance is the letter/objection of Justice Department Counsel for the CIA just

obtained by Plaintiff on Tuesday, October 20, 2015, after he requested it from Defendants’

counsel after learning of it the same day. This letter, which is an objection from the CIA over

Defendants’ subpoenas to the CIA and certain personnel, is self-explanatory, as it underscores

the sensitive nature of these documents at a minimum, and sets forth the Department of Justice’s

and the CIA’s position that the software at issue in this lawsuit is not relevant under the

circumstances of this case, among other compelling objections. Exhibit 9.

Even more, the CIA’s letter states that “[t]he CIA objects to the requests to the extent any

response would risk or require the disclosure of any classified national security information orother privileged U.S. Government information.” Thus, even if the software was provided to the

FBI, there is a likelihood that it may never be provided to Defendants because it is classified in

nature and cannot be released.

Given the circumstances, it would work a manifest injustice to dismiss this lawsuit or

raise an adverse inference, at this or any other time. The discovery cut-off date is November 19,

2015, and the trial in this lawsuit is not set to begin until Monday, March 17, 2016. There is still

time remaining for the FBI to review the documents and make a determination of the classified

nature of the documents and software, if any, in its possession, but to leave the trial date in place.

Discovery could be extended for a month or two, for instance. This Court also has the power to

extend discovery, even if it is just on the issue of the software.

Ultimately, it is not possible, under the circumstances, for the FBI to locate and turn over

the software to the Defendants by the date of October 26, 2015, even assuming it exists and is

not classified. Plaintiff is not in possession of the software, and cannot know for certain whether

the software at issue was turned over to the FBI in any event. If the software at issue was turned




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over to the FBI, additional time is required for the FBI to search for this software and to make a

determination of whether the software is classified or not.

For these reasons, Plaintiff respectfully objects to Magistrate Judge Goodman’s Order of

October 19, 2015, and respectfully asks the presiding judge to stay the implementation of this

portion of the Order until such time that this motion is heard by the District Court.

Dated: October 26, 2015

Respectfully Submitted,

/s/ Larry KlaymanLarry Klayman, Esq.FL Bar No. 2462207050 W Palmetto Park Rd.Suite 15-287Boca Raton, FL 33433




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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 26th day of October, 2015, a true and correct copy ofthe foregoing was served via CM/ECF upon the following:

Sanford Lewis BohrerBrian TothHolland & Knight, LLPSuite 3000701 Brickell AveMiami, FL 33131Email: [email protected]: [email protected]

Laura R. HandmanMicah Ratner

Davis Wright Tremaine LLP1919 Pennsylvania Ave., N.W., Suite 800Washington D.C. 20006-3401Email: [email protected]: [email protected]

Attorneys for Defendants

/s/ Larry KlaymanLarry Klayman, Esq.




Exhibit 1

Case 1:15-cv-20782-JEM Document 164-1 Entered on FLSD Docket 10/26/2015 Page 1 of 4



UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 15 ‐20782 ‐CIV ‐MARTINEZ/GOODMAN

DENNIS L. MONTGOMERY,

Plaintiff,

v.

JAMES RISEN, et al. ,

Defendants.

______________________________/

POST ‐DISCOVERY HEARING ADMINISTRATIVE ORDER

On October 16, 2015, the parties appeared before the Undersigned concerning

Plaintiff’s alleged failure to comply with the Court’s Order [ECF No. 107] issued on

August 22, 2015 concerning certain software that the Undersigned required Plaintiff to

retrieve from the FBI and produce to Defendants, in addition to turning over

communications related to that software. Defendants seek severe sanctions against

Plaintiff, including the dismissal of the complaint with prejudice, for Plaintiff’s alleged

failure to comply with this Order. For the reasons stated on the record, 1 the

Undersigned ORDERED the following:

1 If any party appeals this Order to the District Court, then the transcript of the

hearing will need to be ordered, as it outlines the Undersigned’s reasoning.

Case 1:15-cv-20782-JEM Document 154 Entered on FLSD Docket 10/19/2015 Page 1 of 3Case 1:15-cv-20782-JEM Document 164-1 Entered on FLSD Docket 10/26/2015 Page 2 of 4



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(1) Defense counsel shall, by October 19, 2015, file a Notice of Filing on

CM/ECF, attaching her October 5, 2015 email to Assistant General Counsel at the FBI,

Ted Schwartz, and his October 6, 2015 response. 2

(2) Plaintiff shall, by October 20, 2015, file a Notice of Filing on CM/ECF,

attaching all communications between Plaintiff (and/or Plaintiff’s counsel) and the FBI

and/or Assistant United States Attorney Deborah Curtis concerning the turning over of

the software and the efforts to retrieve it from the FBI, including all communications in

response to FBI General Counsel James Baker’s request for additional information that

the Court was copied on from September 8, 2015 [ECF No. 126]. All of these

communications shall be turned over to defense counsel as well, even if Plaintiff

attempts to file the documents under seal. 3 If the documents are filed under seal, then

defense counsel are reminded that they are bound by the rules of this Court concerning

under ‐seal filings.

(3) Plaintiff shall, by October 21, 2015, send the FBI, via email to Assistant

General Counsel Schwartz, a comprehensive set of instructions (the best available to

2 Defendants filed these communications on October 19, 2015. [ECF No. 153].

3 The Undersigned is by no means indicating that any such motion to seal will be granted if it is filed. This Court is a Court of public record, and so the process ‐‐

including all filings ‐‐ is presumptively open to the public, except in exceptional

circumstances where good cause is shown. The communications at issue, on their face,

appear to be fairly standard and innocuous; however, should a motion to file under seal

be entered, then the Court will consider it and expect to see good cause for such an

extraordinary remedy.




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Plaintiff) as to how to pinpoint the software amidst the massive amount of data that

was turned over to the FBI. If Plaintiff cannot tell the FBI exactly how to identify the

software, then he shall so state in the email. Copies of that email shall be filed with the

Court (publicly) on CM/ECF by October 22, 2015.

(4) Plaintiff shall, by October 26, 2015, produce the software at issue in this

case to Defendants. If the software is not turned over by this date and Defendants seek

significant sanctions (i.e. dismissal or an adverse inference), then Defendants may file a

motion and/or memorandum of law if they are still seeking sanctions. If Defendants file

a motion, then the Undersigned will issue a briefing schedule order.

DONE AND ORDERED in Chambers, at Miami, Florida, October 19, 2015.

Copies furnished to:

The Honorable Jose E. Martinez

All counsel of record




Exhibit 2




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Page 1 o f 3

S W E ~ S H

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After Visit Instructions for Dennis Lee Montgomery s visit on 10/20/2015

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Diagnoses this visit1. CONCUSSION WITHOUT LOSS OF CONSCIOUSNESS INITIAL ENCOUNTER2. FALL INITIAL ENCOUNTER3. CONTUSION

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Discharge Instructions

Provider Department Dept Phone CenterHunkovic Matthew Issaquah Physical 425-313-7800M PT TherapyCarroll Brenna S Swedish Issaquah 425-313-7089AU.D. Otolaryngology

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ConcussionA concussion or closed-head injury is a brain injury caused by a direct blow to the head or by aquick and sudden movement jolt) o f the head or neck. For you this seems to be due to a fall athome likely from your residual left-sided weakness after your stroke. Concussions are usually not




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Discharge Instructions

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Dennis Lee MontgomeryINTERVENTIONAL RADIOLOGY

POST CEREBRAL ANGIOGRAM INSTRUCTIONS

Activity Instructions:

• On day of discharge limit your activities.• A void strenuous exercise for 48 hours.• No driving for 24 hours after the procedure.• Do not lift , push, or pull anything heavier than 5 pounds for 3 days or as instructed by your

provider. ( Example: Gallon of milk is 8 pounds).• A void stair climbing for 24 hours or as instructed by your provider. f stairs are unavoidable ,

climb slowly , putting as little pressure as possible on the leg used for this procedure.• A void hot baths , hot tubs , or swimming pools for 24 hours.

Wound Care:

• Remove dressing /bandage 24 hours after procedure or as directed by provider.• Remove Syvek patch after 24 hours by soaking with small amount of water and gently peel off

from skin.• You may shower when you return home from your procedure.

For successful wound care and healing:• Keep up good nutrition and hygiene .

• Getting enough rest will help your wound healing .• Follow your physician s specific wound care instructions.• Wash your hands before any wound care




January 6 2015

Re: Dennis Lee Montgomery (DOB 7/11/1953)

To Whom It May Concern:

Mr. Dennis Montgomery unfortunately sustained recent multi-infarct strokes withresultant severe left sided weakness and impaired vision. He completedSwedish inpatient rehab unit under my guidance on 6/21/2014. He is now inoutpatient PT OTto work on ongoing left sided weakness and speech therapyfor stroke related cognitive and memory impairments along with swallowingdifficulties. He has severe left shoulder pain impacting his stroke recovery. Hewill also undergo neuropsychological testing to evaluate his cognitive strengthsand weakness.

Lastly, he is having false visual imagery related to his stroke and is beingfollowed by neuro-ophthalmology with Dr. Eugen May.

Please feel free to contact me if you have any questions.

Sincerely ,

~ ~aul Chuwn Lim, MD

Medical Director of Swedish Rehabilitat ion ServicesSwedish Physica l Medicine and Rehabilitation1600 E Jefferson Street , Suite 60 0 1 Seattle, W 98122(clinic ) 206-320 -2600 1 (fax) 206-320-4054




Joe Eskridge, M.D.

Swedish Neuroscience Institute550 17th Ave #500

Seattle WA 98122206.320.4144

June 27, 2014

To Whom It May Concern

Dear Sirs,

I, Dr. Joe Eskridge recently treated Dennis Montgomery who is a 60 year old man whosuffered from a cerebral aneurysm. His aneurysm was detected in 2011. He does notsmoke and does not have any congenital blood vessel diseases that contribute to aneurysmdevelopment.

High blood pressure can accelerate aneurysm growth and increase the risk of rupture andstroke. Stress can increase blood pressure and contribute to aneurysm growth. On amore probable than not basis stress related hypertension caused the development andgrowth of his aneurysm.

I have performed over 5000 brain artery repair and embolization procedures over thepast 30 years. I was Professor of Radiology and Neurosurgery at the University ofWashington Medical School from 1987-2004.

Sincerely yours,

Joe Eskridge, M.D.




Exhibit 3




Case 1:15-cv-20782-JEM Document 127 Entered on FLSD Docket 09/09/2015 Page 3 of 6

IN THE UNITED ST TES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORID

DENNIS L. MONTGOMERY

PlaintiffCivil Action No. 1:15-cv-20782-JEM

v.

JAMES RISEN ET AL.

Defendants.

DECL R TION OF UNDERSIGNED COUNSEL L RRY KL YM N WITH REG RD

TO LETTER FROM FBI GENER L COUNSEL

Pursuant to 28 U.S.C. § 1746 I Larry Klayman hereby declare under penalty o f perjury

that the following is true and correct:

1 I am over the age o f 18 and I make this declaration on personal knowledge and belief. I

am mentally and legally competent to make this declaration sworn under oath.

2 I along with my hief o f Sta ff and paralegal Dina James first met Ms. Deborah Curtis

Assistant U.S. Attorney for the District o f Columbia in the Criminal Division who is

primarily involved in national security issues on July 28 2015 after several phone calls

during the weeks prior to July 28 2015.

3 During our first meeting I explained to Ms. Curtis that my client Mr. Dennis

Montgomery was involved in civil litigation with James Risen and his publishing

companies over allegations that Mr. Montgomery had been defamed. The primary libel

occurred in his recently published book called Pay Any Price: Greed Power and Endless

War.

4 I suggested to Ms. Curtis that she might want to read a copy as even Mr. Risen had





written that Mr. Montgomery was at the center o anti-terrorism efforts following the

tragic events o September 11, 2001.

5 During a subsequent meeting in Miramar, Miami, at the Federal Bureau oflnvestigation

( FBI ) Field Office there, where Mr. James Baker, General Counsel o the FBI was not

present, when Mr. Montgomery turned over the hard drives, I again advised Ms. Curtis

and the agents that were present, Walter B Giardina, Supervisory Special Agent, and

William J Barnett, Special Agent, that the litigation was going forward and that Mr.

Montgomery was being deposed the following day by counsel for Mr. Risen and his

publishers.

6 My representations to Ms. Curtis and the special agents were not off-hand comment[s],

but instead to inform Ms. Curtis and the agents o the status o the civil case.

7 I believe that it was in the best interest o my client, Mr. Dennis Montgomery, myself as a

former Department o Justice prosecutor, and well as the Department o Justice, to be

fully forthright. This is why I put Ms. Curtis on notice from the first time I met her that

there was pending civil litigation.

8 With regard to the deposition, I told Ms. Curtis that I would be careful not to have Mr.

Montgomery disclose any classified information during his deposition. I also advised her

that Defendants had raised the issue o his alleged software and wanting to get access to

it, but that we were taking the position that it was irrelevant. ee Objection to Portions o

Magistrate Judge's Order o August 22, 2015 [Dkt 125].

9 In this context, I asked Ms. Curtis i Mr. Montgomery could have access to anything that

was not considered to be classified contained in the hard drives, including any

unclassified software should it have to be produced, and that was not considered

2





contraband. I further asked her and the FBI agents to determine i it is classified. She

agreed on behalf o the U.S. Department o Justice, should it have to be produced in the

civil litigation concerning Mr. Risen and his publishers.

10. Additionally, I asked that an expeditious review be conducted o the information that was

provided, both because o Mr. Montgomery s failing health and also because o the

pending civil litigation.

I hereby swear under oath and penalty o perjury that the foregoing facts are true and

correct to the best o my personal knowledge and belief:

September 9 2015

3




Exhibit 4





IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF FLORIDA

DENNIS L. MONTGOMERY

Plaintiff,Civil Action No. 1:15-cv-20782-JEM

v.

JAMES RISEN , T AL.,

Defendants.

DECLARATION OF DINA JAMES i ARALEGAL WITH REGARD TO LETTERFROM FBI GENERAL COUNSEL

Pursuant to 28 U.S.C. § 1746, I, Dina James, hereby declare under penalty of perjury that

the following is true and correct:

1 I am over the age of 18 and I make this declaration on personal knowledge and belief. I

am mentally and legally competent to make this declaration sworn under oath.

2 I was physically present with Mr. Larry Klayman during all meetings with Ms. Deborah

Curtis, Assistant U.S. Attorney and the Federal Bureau oflnvestigation.

3 I have reviewed Mr. Klayman s declaration and it is true and correct in all respects (see

attached).

I hereby swear under oath and penalty o f perjury that the foregoing facts are true and

correct to the best of my personal knowledge and belief:

September 9, 2015




Exhibit 5




N UNITED ST TES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORID

CASE NO.: 15-cv-20782-Martinez

DENNIS MONTGOMERY,

Plaintiff,v

RISEN, ET AL.

Defendants.

I, Dennis Montgomery, being over 18 years of age and based on my personal knowledge and

belief, hereby declare under penalty of perjury that the following is true and correct:

1 Based on my personal knowledge and belief, upon searching my memory, I do not

believe that have had access to any of the subject software, nor did provide it to the

Federal Bureau oflnvestigation ( FBI ) when I turned over the drives pursuant to my

immunity agreement of July 28, 2015 and the inventory of what I turned over.

However, am today providing some additional information (attached) which may

allow the FBI to see if the software in whole or in par t exists on the drives

turned over to the FBI to conduct its ongoing classification review.

2 These documents have been and are being filed under seal and are being produced to

Defendants' counsel and Magistrate Judge Goodman subject to the court's protective

order.

Dated: October 21, 2015




Exhibit 6

Case 1:15-cv-20782-JEM Document 125-3 Entered on FLSD Docket 09/04/2015 Page 1 of 4Case 1:15-cv-20782-JEM Document 164-6 Entered on FLSD Docket 10/26/2015 Page 1 of 4



Deposition of JAMES RISEN Conductedon June 19, 2015

PLANET DEPOS | 888.433.3767 | WWW.PLANETDEPOS.COM

1 (Pages 1 to 4)

1

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

234 -------------------------------X

)5 DENNIS MONTGOMERY, )

)6 Plaintiff, )

) Case No.:7 v ) 15-cv-20782

)8 JAMES RISEN, HOUGHTON MIFFLIN )

HARCOURT PUBLISHING CO., )9 HOUGHTON MIFFLIN HARCOURT )

COMPANY , )10 )

Defendant. )11 )

-------------------------------X1213 141516 TRANSCRIPT

Deposition ofJAMES RISEN

17 WASHINGTON, D C18 Friday, June 19, 201519 9:02 a.m.202122 Job No.: 8582823 Pages: 1 - 40724 Reported by: Donna Marie Lewis, RPR, CSR25

2

12

T ranscript of deposition of JAMESRISEN, held at the offices of:

34 DAVIS WRIGHT TREMAINE, LLP5 1919 Pennsylvania Avenue NW6 Suite 8007 Washington, D C 200068 (202) 973-42009

10 Pursuant to re-Notice before Donna Marie11 Lewis, RPR, CSR, Notary Public of and for the District12 of Columbia.13141516171819202122232425

3

1 A P P E A R A N C E S

2 ON BEHALF OF PLAINTIFF DENNIS MONTGOMERY:

3 LARRY KLAYMAN,ESQUIRE

4 2020 Pennsylvania Avenue, NW

5 Suite 800

6 Washington, DC 200067 (310) 595-0800

8 ON BEHALF OF DEFENDANT HOUGHTON MIFFLIN HARCOURT

9 COMPANY:

10 LAURA R. HANDMAN, ESQUIRE

11 DAVIS WRIGHT TREMAINE, LLP

12 1919 Pennsylvania Avenue, NW

13 Suite 800

14 Washington, D C 20006

15 (202) 973-4224

16

17 MICAH RATNER, ESQUIRE

18 DAVIS WRIGHT TREMAINE, LLP19 1919 Pennsylvania Avenue, NW

20 Suite 800

21 Washington, D C 20006

22 (202) 973-4223

23 ALSO PRESENT:

24 ANTHONY FIELDS, VIDEOGRAPHER

25

4

1 INDEX2 WITNESS:3

JAMES RISEN4 EXAMINATION BY: PAGE5 By Mr. Klayman 66

7 E X H I B I T S8 EXHIBITS: DESCRIPTION PAGE9 No. 1 Email 47

10 No. 2 Email dated 9/23/11 9911 No. 3 Book, Pay Any Price 12312 No. 4 Playboy Article 12413 No. 5 Notes 14714 No. 6 New York Times Article 16415 No. 7 Email dated 10/5/12 17616 No. 8 Contract with Houghton Mifflin 19117 No. 9 Declaration 20318 No. 10 Amended Complaint 21119 No. 11 Declaration of Dennis Montgomery 22920 No. 12 Article from 2011, Bates No. DEFS002587 25421 No. 13 Bates DEFS002528 thru 2530 31222 No. 14 Bates DEFS004140 thru 4147 36023 No. 15 Bates DEFS003992 thru DEFS004003 36224 No. 16 Bates DEFS000419 thru DEFS000424 36325 No. 17 Bates DEFS003882 379






28 (Pages 109 to 112)

109

1 MS. HANDMAN: And Mr. Risen was on2 assignment.3 MR. KLAYMAN: I will prove what was said4 when --5 MS. HANDMAN: And I was out of the country6 the week that you wanted to take the deposition, that7 you had noticed the deposition.8 MR. KLAYMAN: I have emails to the contrary.9 MS. HANDMAN: You do not.

10 MR. KLAYMAN: They'll be produced within the11 motion as part of the pattern of conduct.12 BY MR. KLAYMAN:13 Q Now Mr. Risen, is it correct that you --14 other than what was testified to in front of Congress15 which you claim was testified to references to16 documents at the CIA, you did not have access to any17 government documentation in writing your book, Pay Any

18 Price?19 A No, we did because there were lots of court20 records related to FBI investigations, Air Force21 investigations, lots of emails and other records22 related to and depositions, so there were many23 government documents that we relied on that were all24 public, had filed in court cases. And when, as I25 said, when the Senate Chambliss referred specifically

110

1 to having reviewed a whole series of CIA documents2 that corroborated the media reports, the many media3

reports that had been published prior to our story and4 Pay Any Price that showed that people at the CIA5 believed that this was a bogus intelligence operation.6 Q You never asked any of your government7 sources for backup documentation with regard to8 Mr. Montgomery. Did you?9 MS. HANDMAN: Objection.

10 THE WITNESS: Yes, of course. We always11 ask. But trying to get classified documents is12 difficult for a reporter.13 MS. HANDMAN: Objection.14 THE WITNESS: So it always -- you know, it15 is not something that you always get.16 BY MR. KLAYMAN:17 Q And you didn't get them here with --18 A As I said, we got lots of government public19 records from government cases, including the FBI, the20 whole investigation, Mr. Heraldson's phone calls21 with -- or phone call with Mr. Montgomery on behalf of 22 the FBI. So there is lots of documentation.23 Q But the only thing that you got --24 A Interviews with eTreppid employees with the25 FBI, things like --

111

1 Q Now, the only documents you got were those2 documents that were public?3 A Court records, yes. Public court records.4 Q Okay.5 A And we didn't -- I didn't attribute anything6 to classified documents that I had obtained from the7 CIA directly in connection with this.8 Q So with regard to your reporting -- excuse9 me, with regard to what you wrote about Mr. Montgomery

10 in your book, Pay Any Price, you didn't have any11 documents that weren't otherwise public. Correct?12 MS. HANDMAN: Objection.13 THE WITNESS: I have to review that. I14 can't -- I think I have given -- I don't recall15 anything that I haven't turned over.16 BY MR. KLAYMAN:17 Q Okay. I think you answered the question,

18 I'm just laying the foundation. However, when19 Mr. Montgomery wanted to give you a story about the20 mass collection of metadata and other intelligence21 information on virtually the entire American22 population by the CIA which you demanded documents23 from him or you wouldn't report to story?24 A He made vague assertions that -- and never25 provided any details. He kept saying that I can't

112

1 really tell you what I'm talking about because I would2 get in trouble. And so he never provided any details3

at all, even in conversations. And then I said well,4 okay, provide some evidence and I will write a story.5 I think he has done with other reporters as well as6 many other people. And I think -- you know, so I kept7 saying, you provide me the evidence and I will write8 the story. And he was so vague about what he was9 talking about that there was never any -- it was never

10 clear exactly what the story was. He kept talking11 about possible hacking on behalf of the government but12 he was never providing much detail.13 Q And neither you nor Mr. Lichtblau or anyone14 else sought to confirm his story by mentioning it to15 any of the government people that you communicated16 with concerning Mr. Montgomery?17 A No. I don't think that is accurate. I18 think we did. I think I tried to talk to other people19 about it, but there was -- there was so little20 specifics that he had provided that -- in fact no21 specifics.22 Q But there is nothing in any of the documents23 that you produced to show or even suggest that, is24 there?25 A You know, I --






31 (Pages 121 to 124)

121

1 drive?2 A As I said I don't recall a thumb drive. I3 recall going through the documents and getting the4 documents from Eric. I don't remember exactly how I5 got them.6 Q So Eric lied about the thumb drive?7 MS. HANDMAN: Objection.8 THE WITNESS: I don't know. He may have had9 a thumb drive and then transferred them to his

10 computer and then given them to me. I don't remember.11 Somehow I got them and he had them.12 BY MR. KLAYMAN:13 Q Well, other than the public documents that14 you claim that you had access to these are the only15 other documents that you got with regard to16 Montgomery?17 MS. HANDMAN: Objection.

18 THE WITNESS: What are you referring to?19 BY MR. KLAYMAN:20 Q The thumb drive of 20,000 pages or whatever21 form they came?22 A That was the court records, the court23 documents. It was not 20,000 as far as I can tell.24 Q Now it says here in Exhibit 1 that25 Mr. Lichtblau spent eight hours with the source, the

122

1 source being Mike Flynn?2 A Yeah, I believe it was Flynn.3

Q Did he travel to Mike Flynn's office?4 A I don't remember frankly where they met.5 Q Who paid for his travel expenses?6 A I'm sure it was the New York Times.7 Q Where is Flynn's office?8 A It is in California.9 Q Where in California?

10 A I don't remember where it was at that time.11 I didn't go see him so I don't know.12 Q I will show you, I showed you Exhibit 213 where you thanked him for the documents, Mr. Flynn.14 Do you think there is anything here or anything that15 you haven't explained of the presentation that16 Montgomery made to the CIA. Did Mr. Flynn then send17 you other documents purportedly showing18 Mr. Montgomery's presentation to the CIA?19 A I think he just gave us all of the court20 records. And I don't recall. I don't even recall21 this conversation frankly.22 Q I will show you what I will ask the court23 reporter to mark as Exhibit 3. Is this your book, Pay24 Any Price.25 A Is it. Is it okay if I go to the bathroom?

123

1 MS. HANDMAN: Sure. We are taking about a2 ten minute break.3 MR. KLAYMAN: You need ten minutes to go to4 the bathroom.5 THE VIDEOGRAPHER: We are going off of the6 record. The time is 11:25.7 (Risen Deposition Exhibit No. 3 was marked8 for identification)9 THE VIDEOGRAPHER: Going back on the record.

10 The time is 11:31.11 BY MR. KLAYMAN:12 Q Mr. Risen, you just testified that13 Mr. Montgomery never gave you any documents to back up14 his story. Correct?15 A Which story?16 Q The story about mass surveillance on17 American citizens and --

18 A Right.19 Q Judges and whatnot?20 A Right.21 Q And you are aware that the reason he didn't22 give it as he claimed was he didn't want to give you23 classified information. Correct?24 MS. HANDMAN: Objection.25 THE WITNESS: I'm not sure. He kept saying

124

1 he was going to then he wouldn't do it. And he gave2 different reasons for it it seems like.3 BY MR. KLAYMAN:4 Q Are you saying he never said to you I can't5 give it to you because it is classified?6 A I think sometimes he -- well, it was more7 about I have -- you know, they would sanction me or8 they would come after me. But some other times it9 seemed it wasn't clear whether that was always the

10 reason or not.11 Q And you say that based your reporting in12 part on stories written by others such Aram Roston of 13 Playboy magazine who wrote a story, The Man Who Conned14 the Pentagon?15 A Yeah. That was written long before our16 story.17 Q I will show you what is will ask the court18 reporter the mark as Exhibit 4.19 (Risen Deposition Exhibit No. 4 was marked20 for identification)21 BY MR. KLAYMAN:22 Q Yes, that is the Playboy story by Mr. Aram23 Roston. That is the story that you are referring to24 in Playboy magazine?25 A It looks like it, yes.




Exhibit 7




8/31/2015 Gmail - Fwd: Montgomery v. Risen, No. 1:15-cv-20782-JEM

https://mail.google.com/mail/u/0/?ui=2&ik=e027b36078&view=pt&search=inbox&msg=14f8570627f8507b&siml=14f8570627f8507b 1/1

Fwd: Montgomery v. Risen, No. 1:15-cv-20782-JEM

Ratner, Micah <[email protected] >Date: Mon, Aug 3, 2015 at 2:27 PMSubject: Montgomery v. Risen, No. 1:15-cv-20782-JEMTo: "Larry Klayman ([email protected] )" <[email protected] >Cc: "Handman, Laura" <[email protected] >, "[email protected] " <[email protected] >,"[email protected] " <[email protected] >

Mr. Klayman

Under the scheduling order, experts witness summaries and reports are due today. The attached identifies anexpert to you today under Fed. R. Civ. P. 26(a)(2) who may test the relevant software to determine whether itworks as the Amended Complaint asserts.

Of course, you objected to producing the software. No expert can test it until after it’s been turned over to us. Asyou know, unless we come to some resolution in the meet and confer, Judge Goodman will decide whether youmust produce the software.

If and

when

your

client

produces

a

testable

version

of

the

relevant

software,

we

will

proceed

to

provide

expertsummaries and reports, if any, within a reasonable time after your client’s production.

Regards,

Micah

Micah Ratner | Davis Wright Tremaine LLP 1919 Pennsylvania Avenue NW, Suite 800 | Washington, DC 20006-3401

Tel: 202-973-4223 | Fax: 202-973-4423 Email: [email protected] | Website: www.dwt.com

Anchorage | Bellevue | Los Angeles | New York | Portland | San Francisco | Seattle | Shanghai | Washington, D.C

Defendants' Disclosure Under Rule 26(a)(2)(A).pdf 6K


mailto:[email protected]








mailto:micahratner@dwtlcom

http://www.dwt.com/


mailto:micahratner@dwtlcom




https://mail.google.com/mail/u/0/?ui=2&ik=e027b36078&view=att&th=14f8570627f8507b&attid=0.1&disp=attd&realattid=7b4f75e4198b3b85_0.1&safe=1&zw



http://www.dwt.com/





Exhibit 8




UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

Case No. 15-cv-20782-MARTINEZ/GOODMAN

DENNIS MONTGOMERY,

Plaintiff,

v.

JAMES RISEN et al.,

Defendants. ________________________/

DEFENDANTS’ EXPERT DISCLOSURE UNDER RULE 26(a)(2)(A)

Under Federal Rule of Civil Procedure 26(a)(2)(A), Defendants hereby disclose the

identity of the following witness who Defendants may use at trial to present evidence under

Federal Rule of Evidence 702, 703, or 705:

Stephen R. BissellBissell Group LLC19855 NW Nestucca Dr.Portland, Oregon 97229(503) 939-9392

Dated: August 3, 2015 Respectfully submitted,

s/Micah J. RatnerSanford L. BohrerFlorida Bar No. [email protected] W. TothFlorida Bar No. 57708

[email protected] & K NIGHT LLP701 Brickell Avenue, Suite 3300Miami, Florida 33131Telephone: (305) 374-8500Fax: (305) 789-7799




– and –

Laura R. Handman (admitted pro hac vice )[email protected]

Micah J. Ratner (admitted pro hac vice )[email protected] WRIGHT TREMAINE LLP1919 Pennsylvania Ave., NW, Suite 800Washington, D.C. 20006Tel.: (202) 973-4200Fax: (202) 973-4499

Counsel for Defendants

CERTIFICATE OF SERVICEI certify that on August 3, 2015, I served this document by email on all counsel of record.

s/Micah J. Ratner




Exhibit 9




U.S. Department of Justice

Civil DivisionFederal Programs Branch

Mailing Address Delivery Address Post Office Box 883 20 Massachusetts Ave., N.W.Washington, D.C. 20044 Washington, D.C. 20530

Raphael O. Gomez Telephone: (202) 514-1318

Senior Trial Counsel Facsimile: (202) 616-8460 Email: [email protected]

October 16, 2015

BY ELECTRONIC MAIL

Laura R. Handman, Esq.Davis Wright Tremaine LLP

1919 Pennsylvania Ave., N.W., Suite 800Washington D.C. 20006-3401

Re: Montgomery v. Risen , C.A. No. 15-cv-20782 (S.D. Fla.)

Dear Ms. Handman:

On October 2, 2015, counsel for defendants in the above-referenced action notified theCentral Intelligence Agency ("CIA'') that pursuant to 32 C.F.R. Part 1905 (CIA’s Touhyregulations), “(d)efendants seek discovery from the [CIA], its components, and its current andformer employees.” Ratner Declaration at 1. You also stated that pursuant to 32 C.F.R.

§ 1905.4(d), you offered the declaration of defendants’ attorney Micah J. Ratner “as a statementregarding the scope and relevance of the requested discovery.” Id . Further, as part of yourTouhy request, you served subpoenas for documents and testimony from CIA employees uponthe CIA. As you are aware, the CIA is not a party to this action, in which plaintiff brings a “libelaction against author James Risen, his publisher HMH, and its holding company HMHC arisingfrom statements in Chapter 2 ("Chapter") of his book, Pay Any Price: Greed, Power, and the

Endless War .” Id . at 1-2.

CIA’s Touhy regulations prohibit its employees from either producing documents ortestifying without prior authorization from the proper agency official. See 32 C.F.R. § 1905.3.As set forth in its Touhy regulations, in determining whether information can be produced in

response to your requests, CIA officials will consider a number of factors in reaching a decision,including, but not limited to: whether production is appropriate in light of any relevant privilege;whether production is appropriate under the applicable rules of discovery; whether disclosurewould violate a statute; whether disclosure would be inconsistent with the statutory responsibilityof the Director of the CIA to protect intelligence sources and methods; and whether disclosurewould reveal classified information. 32 C.F.R. § 1905.4(c).

Your requests are currently under consideration by the CIA. As of the date of this letter,however, a determination has not yet been made as to whether any of the information you areseeking can be produced, and therefore no production of documents or deposition testimony onthe designated dates may take place. See id .







2

In the meantime, while your subpoenas for documents and testimony are being made pursuant to the CIA’s Touhy regulations, assuming, arguendo , that Rule 45 applies to yourrequest, the CIA preserves the following additional objections to the requests:

1.

As stated above, your Touhy subpoena requests for documents and testimony are underconsideration by the CIA and as a determination has not yet been made as to whether anyof the information you are seeking can be produced, no production of documents ordeposition testimony on the designated dates may take place. See 32 C.F.R. § 1905.3(a).

2. The CIA objects to the requests to the extent any response would risk or require thedisclosure of any classified national security information or other privileged U.S.Government information. To the extent a response to the requests would do so, noresponse is required or will be provided. In addition, none of the objections set forthherein should be construed to confirm or deny that the CIA maintains or has maintainedthe information being sought in the request, and discussed in this response, or any

statement or allegation in the request or in Chapter 2 of “Pay Any Price: Greed, Power,and the Endless War.”

3. As set forth more specifically below, your requests violate Rules 26 and 45 of the FederalRules of Civil Procedure, see Fed. R. Civ. P. 26(c), 45(d)(1), (d)(3), on the grounds, interalia , that they are overly broad, unduly burdensome, unreasonably cumulative andduplicative, and fail to describe the information sought with reasonable particularity, andto the extent they call for the production of privileged information. Compliance withthese requests will impose substantial burdens that will detract from the mission of theCIA.

4. The CIA specifically objects to your deposition requests on the ground that they areoverly broad, unduly burdensome, unreasonably cumulative and duplicative, and fail todescribe the information sought with reasonable particularity. The request seeks todepose 4 current or former CIA employees concerning at least 12 topic areas.Depositions of current or former CIA officials in third party litigation impose substantial

burdens on the CIA’s mission in light of the need to ensure that any U.S. Governmentinformation is authorized for disclosure and that any classified national securityinformation is not disclosed. Again without confirming or denying any allegation orstatement, you seek to depose several current or former high-ranking agency officials onan extraordinarily broad range of topics and matters in which the CIA was allegedlyinvolved, going back over a decade. Your deposition requests are also “unreasonablycumulative [and] duplicative,” see Fed. R. Civ. P. 26(b)(2)(C)(i), in that many of thetopics on which you seek deposition testimony are covered in your requests for agencydocuments.

5. The CIA also specifically objects to your document requests on the ground that they areoverly broad, unduly burdensome, unreasonably cumulative and duplicative, and fail todescribe the information sought with reasonable particularity, and to the extent they callfor the production of classified national security or other privileged information. In

particular, many of the requests seek information that would be expected to be




3

substantially duplicative of information contained in and cited by defendants in officiallyreleased public reports. See , Defs. Mot. Dismiss at 36, ECF No. 25.

6. The document requests also seek information that is otherwise available from sources thatare more convenient, less burdensome, and/or less expensive. Defendants are currently

seeking the same information and material in the instant action from plaintiff. Forexample, defendants seek a copy of Mr. Montgomery’s software from the CIA when itcurrently has obtained a court order in the instant action for production of such softwarefrom plaintiff. See Post Discovery Hearing Order dated August 22, 2015, ECF No. 107.

7. The subpoena "fails to allow reasonable time for compliance." Fed. R. Civ. P.45(d)(3)(A)(i). The subpoena was served on October 2, 2015, and requests production ofdocuments by October 21, 2015. Given the breadth of the subpoena, 12 working daysdoes not even come close to providing sufficient time for CIA to ascertain whether and towhat extent the CIA can provide any response to the request.

8.

You have not satisfied your burden of establishing that the requested information isrelevant to [your clients’] defenses. For example, you assert that the testimony sought isneeded to support your clients’ defenses in this action, including “information essential toanswering questions that are central to the element of falsity in Montgomery's libelclaim.” Ratner Declaration at 3. The validity of these defenses turns, however, on whatthe defendants knew or should have known at the time of the challenged statements, noton what the government knew. See, Don King Prods. v. Walt Disney Co ., 40 So. 3d 40,43 (Fla. Dist. Ct. App. 4th Dist. 2010) (in the context of defamation, actual malice isdefined as knowledge that the statement was false or reckless disregard of whether it wasfalse or not. [ citing New York Times Co. v. Sullivan , 376 U.S. 254, 279-80, (1964)]); inassessing “reckless disregard,” the court found that a showing of “reckless disregard”requires “sufficient evidence to permit the conclusion that the defendant in factentertained serious doubts as to the truth of his publication.” Id . (quoting the SupremeCourt in St. Amant v. Thompson , 390 U.S. 727, 731 (1968). As a result, your requests arealso not “reasonably calculated to lead to the discovery of admissible evidence,” and the

burden and expense of providing the requested testimony would outweigh its likely benefit in the underlying action. See Fed. R. Civ. P. 26(b)(1), (b)(2)(C)(iii).

The foregoing objections are not exclusive, and the CIA reserves the right to assert furtherobjections in response to the subpoenas requesting documents and testimony as appropriate,including, but not limited to, privileges and protections such as the attorney-client privilege, thework product doctrine, the deliberative process privilege, and the need to withhold classifiedinformation.

* * *




4

For all these reasons, CIA objects to the subpoenas and has not authorized the productionof the requested documents or deposition testimony at the date, time, and place specified on thesubpoenas. You will be advised once the CIA has made a final decision on your requests

pursuant to its Touhy regulations.

Sincerely,

/s/Raphael O. Gomez




Exhibit 10





VIA EMAIL

Larry Klayman , Esq.7050 W Palmetto Park RoadSuite 15-287Boca Raton , FL 33433leklayman @ gmail.com

Dear Mr. Klayman ,

U Department of u sti ce

Federal Burea u of Inv estiga ti on

Washing ton, D C 20535-000 I

September 8, 20 15

This is in response to your letter dated August 26 , 2015, whic h you se nt to me andAssis tant U .S. Attorney Deborah Curtis (he reinafter Letter ). In the Letter you excerpt (andfully append thereto) an Order dated August 22 , 2015 , issued by U.S. Magistrate Judg e JonathanGoodman , in the matter of Dennis L Montgomety v . James Risen et l Case No. 15-20782-CIV, U.S. District Court for the Southern District of Flor ida , directing you to adv ise me andAUSA Curtis that your clie nt , Dennis Montgomery , has been ordered by that Court to producecertain software in discove ry The Order , at paragraph 6 , also directs your client to use his right

of continued access to non-classified information to obtain the original software (or a copy of it)from the FBI.

In addition to the Letter and Order , I have been advised that there is a transcript from anAugust 21 , 2015 , Discovery Hearing before Magistrate Judge Goodman , during wh ich you madecertain representations about the Government's undertakings with respect to the software at issueand the Government ' s knowledge of the status of this litigation (hereinafter Transcript ). Priorto addressing th e means by which your client , Mr. Montgomery , will be afforded access to thematerials he provided to the FBI , the Government w ill augment the record 1 and correct anymi sunde rstandi ngs about the conditions under whi ch the FBI took possession of the materialsfrom Mr. Montgomery. 2

1 As to any factual matt ers se t forth in this letter about which I do not have personal knowled ge, I set forth tho sefacts herein based upon information provided to me in my official capacity.2 Thi s letter focuses on the condition s under which the FB I took po ssession of the material s and i s not intended as acomprehensive respon se to oth er statements made by you to Magistrat e Judge Goodman at the August 21 , 2015hearing.





First, the Washington Field Office of the FB I, in conjunction with the U.S. Attorney' s Offic e forthe District of Co lumb ia , is e ngaged with you on the sole iss ue of yo u r cli ent ' s a llega tion thatU.S . Government officials ma y have engaged in violation s of federal criminal law. To supp ortthis allegation , Mr Montgomery expressed a desire to vol unt arily produce tangible evidence inthe form of co mputer hard driv es. Through an attorney proffer , yo u pro vided a n inv entory of

these m ate ria ls. Based upon that proffer and your client' s repre se ntation that ce rtain r e levantinformation on the driv es was hi ghl y cla ss ifi ed, the Government agreed to grant your c lientproduction immunity for those items, as mem oriali ze d in a letter agree ment dated Jul y 28 , 20 15Durin g di scuss ion s about the pr oduction , you indicated that t im e was of the essence inproducing the hard driv es to th e FBI becau se of yo ur client ' s ill hea lth. 3 You did n ot link anydesire to move quickly b eca use of any pendin g c iv il litigation.

Seco nd , in advance of prov idin g the hard dri ves to the FB I, yo u offered that you r cli en thad oth er materials that were w ho lly irr e levant to the FBI inqu iry that ma y be on the dri ves. Youalso conveyed that you r c lient wis hed to tum over eve ry co mput e r drive in hi s possess ion to theauthorities as part of thi s comp la int revi ew process . Accordingly, you reque s ted that Mr

Mo ntgome ry be afford ed th e op t ion to re tri eve certain perso nal in fo rmati on from the drive s, if

neces sary. You r explan at ion ce nte red on yo ur cli ent ' s ill h ea lth as well as hi s desire to mak e aful some disclosure to the Government in the co ntext of the FB I inquir y. Agai n, you did notassoc iat e the potential retrieval of this information with any pending civil liti ga tion. On A ugust12, 2015, the Government agree d to th e fo llo wi ng in an ema il:

Finally, yo u indicat ed that yo ur client wi ll also be prod ucin g certain othe rinformatio n hou sed on these electron ic drives that is not relevant to this inquiry.

Because your cli en t w ill n ot re tain any co p ies of the mate ria ls whic h h e is producing ,yo u h ave asked whether he can retrieve co pies of certain item s in th e Gove rnm ent 's

po ssess ion , upon request. Wh ile we have no genera l objectio n to es tabli shin g aproced ure by which Mr. Mont gom ery ma y receiv e cop ies of the fil es he hasproduced , plea se be a dvise d that the Gove rnment m ay not return to any c it ize n itemswhic h are determin ed to be contraband , i.e. prese ntl y class ified information , chi ldpornography, etc. Also, s uch requests s hould not undul y burden the FB I nor inte rfer ewith the ongo ing rev iew proces s .

Nex t, based again on yo ur cli ent ' s m ed ica l condition and co nvenienc e, you spec ific all yrequ ested that Mr. Mo ntgomery be permitted to produce the materials to the FB I on August 19,2015, in Mia mi , Florida. On that date , at the FBI F ie ld O ffice in Miramar, Flo rid a, the FBI tookposse ss ion of fo rt y-seven computer hard driv es from your c lient that purport edl y contain

3 In the Transcript a t page 45 , lines 9-13 , you s tate , And what I said was that we did inform the assis tant U Sattorney , Deborah Curt is, of the civil litigation. We informed her of the need to move quickl y and they agreed tomove quickly. And we informed them that we want to do everyth ing according to the law and that's important.





evidence of th e a bove-re fe renc ed violations. The FBI took po ssess ion of these drives with theso le und ers tandin g that th e Government would be co ndu ctin g a rev iew of yo ur c li ent s

a llegations , an d fo r n o ot her purpose. Furth er, based upon your client s representations that TopSecret , compartmen ted information m ay reside throughout the hard drives , the Governmentresolved to treat the mat er ia ls un de r review as presump ti ve ly class ified fo r secur ity purposes.However, th e Government neither agreed to und ertake, nor und erstood any ob li ga ti on toconduct , a classification review of any of these mat e rial s for the purp ose of any civil liti ga ti on.

A lso , during the co urse of thi s nearly three hour mee tin g at the FB I Fie ld Office inMiramar , Florida , you made an off -hand com ment that you were in Miami for a depos ition thefollowing day in a civil case. You ne ver asked, and the FBI neve r agreed , fo r th e Government tound ertake a class ification r ev iew of software in co nnecti on with tha t civi l case. No tabl y, fo r th erecor d, this is in stark co ntr ast w ith the Transcr ipt at page 48 , lin es 2 1 0:

T HECOURT

: All ri

ght.So

what I hea

r youreprese ntin g to m e is th at in makin g th e arrangements to turnover thi s software an d other mat eria ls to the FBI, yo u adv isedAUSA C urti s about thi s c ivil litigation?

M R. KLAYMAN: Co rrect.

TH E C OURT: And we need for th e FB I to proc eedquick ly a nd make a determination one way or the ot her w hetherthi s software is classified and you told her that?

MR. KLAYMAN: Cor rect.

No twith stan din g the fact that the Gove rnment never agreed to undertake a cla ss ifi catio nreview of any material on the hard drives , the Governme nt is prepa red to facilitate Mr

Montgomery s reasonab le access to uncl assified information resident on the drives. T his offerrelates specifica ll y to the software at iss ue, to the extent that it exists on an y of the drives.

Howeve r, turnin g back to yo ur Aug ust 26, 20 15 let ter , nota bl y absent is any informati onwhich wou ld ass ist the Government in locating and producing the software at issue inMontgomer y v Risen As you know , when h e gave the hard d ri ves to t he FBI on August 19 ,2015 , your c li e nt a lso gave the FBI a s heet of pape r stating tha t the hard drive s conta in ed 51.6million files amo un ting .to 600 million pages . Furtherm ore, as s tate d previous ly, your c lientclaimed that classified in fo rmation was contained throu gho ut th e hard dri ves.





In view of the massive amou nt of information on the hard drives, the re is no reasonable

way for the Government to locate and provide the a lleged software , absent spec ifi c i nstruc tion sfrom yo ur c lien t A nd because of the c laim that c lassified infom1ation is co nta ined throughout

the hard dr ives , the Government cannot s im ply prov ide you with copies of a ll the hard drives.To that end, please provide the fo llow ing detailed in fo rm ation: 1) the number or designator of

the dr ive on w hi ch the software is present; 2) the file name of the software; 3) the creat ion dateof the software ; 4) any other identifier s) for the softwa re. In the event the software is located,appropr iate U .S. Government age nc ies and /or departments w ill conduct a c lassificat ion review of

the software. These sec uri ty measures a re necessary based on the representations made by Mr.

Montgome ry that classified informat ion resides throughout the drives.

Please p rov ide the above -d escribed information , and any additio na l necessary fo llow-upinformation , to the FBI Washington Field Office s Chief Division Counse l at 202 -27 8 -2000.

cc: Magis trate Judge Jonat han Goodman

S incere ly,

~m sA. Baker

General CounselFederal Bureau of Investigation

Laura Handman , Esq ., counse l fo r Mr. Risen
