Case 1:15-cv-20782-JEM Document 102 Entered on FLSD Docket 08/14/2015 Page 1 of 5

IN UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 15-cv-20782-Martinez-Goodman
DENNIS MONTGOMERY,
Plaintiff,
v.
RISEN, ET AL.
Defendants.
_____________________________/
PLAINTIFF’S PRELIMINARY RESPONSE TO DEFENDANT’S MOTION TO
MODIFY SCHEDULING ORDER AND REQUEST
FOR HEARING FOR AUGUST 17 OR AUGUST 18
Plaintiff, Dennis Montgomery, hereby respectfully files this preliminary response to
Defendants’ Motion To Modify Scheduling Order And Request For Hearing For August 17 Or
August 18.
Having received Defendants’ Motion To Modify Scheduling Order And Request For
Hearing For August 17 or August 18 at 4:02 p.m. EDT, filed at the 12th hour just prior to the
weekend, Plaintiff Dennis Montgomery and counsel are unable to fully respond in time for any
hearing which this Court has been asked on such short notice to set, prior to any proscribed time
allotted for opposition, on August 17th or 18th. Plaintiff’s counsel will be out of the office in any
event during these days.
Defendants’ 12th hour motion, even if meritorious, which it is not, could have been filed
much earlier as to give Plaintiff an opportunity to respond and contains many factual
misstatements and in some instances outright falsities.

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Case 1:15-cv-20782-JEM Document 102 Entered on FLSD Docket 08/14/2015 Page 2 of 5

As set forth in the attached correspondence, there remains ample time to finish discovery
and go to trial as previous ordered by this Court in its Order Setting Civil Trial Date And Pretrial
Schedule, Requiring Mediation, And Referring Certain Motions To Magistrate Judge of May 5,
2015 (ECF No. 48).
As to underscore Defendants’ lack of good faith, and as set forth in the attached
correspondence, Plaintiff’s counsel responded with the following in response to Defendants’
counsel’s attempts to postpone Mr. Montgomery’s deposition by nearly three weeks after having
agreed upon and scheduled the date of August 20, 2015:

Ladies and Gentlemen
We oppose your proposed modification of the pretrial and trial deadlines.
It is also inappropriate to not take plaintiff's deposition and attempt to reset it at
this late date after he and his counsel have arranged their schedules and made
plans at great expense and time and agreed with you on the date. In the unlikely
event you prevail on any motion to compel and we plan on filing one as well there
is plenty of time to undertake further discovery within the parameters of the
current and in effect discovery deadline.
Accordingly your suggested modification is just your latest attempt to delay
adjudication of this case attempting to take advantage of plaintiff's serious and
severely debilitating and potentially fatal brain anneurism and related illnesses.
Previously you tactically attempted to stay all discovery to delay not just
discovery but the trial date.
The judge made it clear that he wants the case to proceed expeditiously and we
intend to do so. We therefore look forward to producing plaintiff for deposition
[i]n Miami in defendants' counsels offices at the previously agreed time on
August 20 and will strenuously oppose your proposed modification of the pretrial
and trial schedule.
Please govern yourselves accordingly.

Email to Defendants’ counsel, dated Thursday, August 13, 2015. Exhibit 1.

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Case 1:15-cv-20782-JEM Document 102 Entered on FLSD Docket 08/14/2015 Page 3 of 5

Plaintiff’s counsel stated the following in an email sent later that evening:

Dear Mr. Toth:
We stand by the position outlined in our earlier email of today.
In addition, we are not available on September 11 or that weekend. In the interim,
our schedule changed, as is normal for litigators and trial lawyers, given our
various commitments. Thus, if you do not decide to proceed with Mr.
Montgomery's deposition on the previously agreed date of August 20, 2015, given
that Mr. Montgomery and his counsel relied on your "good faith" representations
that you would take his deposition then and he thus put off an operation for his
severe medical condition to be present and we as counsel blocked off our
schedule, made logistical arrangements and also rearranged commitments in
various local, then it is our position that Defendants will have forfeited their
"rights" to depose Mr. Montgomery.
Its clear that your objective with all of this late maneuvering is to delay the trial.
This has been your objective from the very first, and that became clear to the
judge at the first status conference. That is why we have the pretrial and trial
schedule that is currently in effect. The judge did not want any delay particularly
given Mr. Montgomery's serious medical condition.
Please attach this email as well to any motion you may decide to file, which in my
view would be nonmeritorious and frivolous as there is more than enough time to
complete discovery before the current deadline.

Email to Defendants’ counsel, dated Thursday, August 13, 2015. Exhibit 1.
Plaintiff will respond more fully within the time allotted by the Federal Rules of Civil
Procedure and the Local Rules for the U.S. District Court for the Southern District of Florida.
Finally, Defendants have just informed Plaintiff that they will proceed with Mr.
Montgomery’s deposition on August 20, 2015 if the Court does not grant their [nonmeritorious]
request for emergency relief. Exhibit 2.

Dated: August 14, 2015

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Case 1:15-cv-20782-JEM Document 102 Entered on FLSD Docket 08/14/2015 Page 4 of 5

Respectfully Submitted,

/s/ Larry Klayman
Larry Klayman, Esq.
FL Bar No. 246220
7050 W Palmetto Park Rd.
Suite 15-287
Boca Raton, FL 33433

4

Case 1:15-cv-20782-JEM Document 102 Entered on FLSD Docket 08/14/2015 Page 5 of 5

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 14th day of August 2015, a true and correct copy of
the foregoing was served via email and U.S. Mail upon the following:
Sanford Lewis Bohrer
Brian Toth
Holland & Knight, LLP
Suite 3000
701 Brickell Ave
Miami, FL 33131
Email: sbohrer@hklaw.com
Email: brian.toth@hklaw.com
Laura R. Handman
Micah Ratner
Davis Wright Tremaine LLP
1919 Pennsylvania Ave., N.W., Suite 800
Washington D.C. 20006-3401
Email: laurahandman@dwt.com
Email: MicahRatner@dwt.com
Attorneys for Defendants

/s/ Larry Klayman
Larry Klayman, Esq.

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Case 1:15-cv-20782-JEM Document 102-1 Entered on FLSD Docket 08/14/2015 Page 1 of 5

Exhibit 1

Case 1:15-cv-20782-JEM Document 102-1
100-1 Entered on FLSD Docket 08/14/2015 Page 2 of 5
Toth, Brian W (MIA - X27510)
From:
Sent:
To:
Cc:
Subject:

Larry Klayman <leklayman@gmail.com>
Thursday, August 13, 2015 6:52 PM
Toth, Brian W (MIA - X27510)
Dina James; Handman, Laura; Bohrer, Sandy (MIA - X27678); Ratner, Micah
Re: Montgomery v. Risen -- motion to modify the scheduling order

Dear Mr. Toth:
We stand by the position outlined in our earlier email of today.
In addition, we are not available on September 11 or that weekend. In the interim, our schedule changed, as is
normal for litigators and trial lawyers, given our various commitments. Thus, if you do not decide to proceed
with Mr. Montgomery's deposition on the previously agreed date of August 20, 2015, given that Mr.
Montgomery and his counsel relied on your "good faith" representations that you would take his deposition then
and he thus put off an operation for his severe medical condition to be present and we as counsel blocked off
our schedule, made logistical arrangements and also rearranged commitments in various local, then it is our
position that Defendants will have forfeited their "rights" to depose Mr. Montgomery.
Its clear that your objective with all of this late maneuvering is to delay the trial. This has been your objective
from the very first, and that became clear to the judge at the first status conference. That is why we have the
pretrial and trial schedule that is currently in effect. The judge did not want any delay particularly given Mr.
Montgomery's serious medical condition.
Please attach this email as well to any motion you may decide to file, which in my view would be nonmeritorious and frivolous as there is more than enough time to complete discovery before the current deadline.
Larry Klayman, Esq.
Counsel for Mr.Montgomery
On Thu, Aug 13, 2015 at 2:53 PM, <Brian.Toth@hklaw.com> wrote:
Mr. Klayman,

We will attach your e-mail to our motion to modify the scheduling order.

As for Mr. Montgomery’s deposition, we will not be going forward on August 20. You have objected to producing
critical discovery to us – in large part, but not in whole part, Mr. Montgomery’s software that is at the heart of his
complaint. We have tried to work this issue out with you and have followed all procedures to have it resolved before
Judge Goodman. That will occur on August 27 or shortly thereafter, and it is unfair (and inefficient) to force us to
depose Mr. Montgomery without having this important matter resolved and without the benefit of discovery that we
believe we are entitled to under the law.

1

Case 1:15-cv-20782-JEM Document 102-1
100-1 Entered on FLSD Docket 08/14/2015 Page 3 of 5
We again ask that you hold September 11 as an available date, in the event that the court does not modify the
schedule. And we again state that we would be willing to depose Mr. Montgomery in a place convenient for him –
Miami, Washington, or D.C. In that regard, you wrote on July 16 that you would be willing to offer him to be deposed
any day from September 1 through September 11, and you also offered going into the following week for his
deposition. If September 12 or 13 (a Saturday and Sunday) would be more convenient, then that would be fine for us,
too.

We stress, however, that if the court extends the deadlines, then we will likely seek to depose him at a later time – to
provide time for Judge Goodman to rule on your objections and, if he orders production of the software and related
information, for us and our expert to review it before deposing him.

Please let us know by August 19 whether you will hold September 11 (or a date thereabouts) open for his deposition. If
not, we will seek to raise this issue with Judge Goodman on August 27.

Regards,

Brian Toth | Holland & Knight
Associate
Holland & Knight LLP
701 Brickell Avenue, Suite 3300 | Miami, FL 33131
Phone 305.789.7510 | Fax 305.789.7799
brian.toth@hklaw.com | www.hklaw.com
________________________________________________
Add to address book | View professional biography

From: Larry Klayman [mailto:leklayman@gmail.com]
Sent: Thursday, August 13, 2015 9:55 AM
To: Toth, Brian W (MIA - X27510)
Cc: Dina James; Laura Handman; Bohrer, Sandy (MIA - X27678); MicahRatner@dwt.com
Subject: Re: Montgomery v. Risen -- motion to modify the scheduling order

Please attach this email to any motion you may file to fully and appropriately describe our opposition to
your attempts to delay this case for the court.
Larry Klayman
On Aug 13, 2015 6:29 AM, "Larry Klayman" <leklayman@gmail.com> wrote:
Ladies and Gentlemen
2

Case 1:15-cv-20782-JEM Document 102-1
100-1 Entered on FLSD Docket 08/14/2015 Page 4 of 5
We oppose your proposed modification of the pretrial and trial deadlines.
It is also inappropriate to not take plaintiff's deposition and attempt to reset it at this late date after he
and his counsel have arranged their schedules and made plans at great expense and time and agreed
with you on the date. In the unlikely event you prevail on any motion to compel and we plan on filing
one as well there is plenty of time to undertake further discovery within the parameters of the current
and in effect discovery deadline.
Accordingly your suggested modification is just your latest attempt to delay adjudication of this case
attempting to take advantage of plaintiff's serious and severely debilitating and potentially fatal brain
anneurism and related illnesses. Previously you tactically attempted to stay all discovery to delay not
just discovery but the trial date.
The judge made it clear that he wants the case to proceed expeditiously and we intend to do so. We
therefore look forward to producing plaintiff for deposition In Miami in defendants' counsels offices at
the previously agreed time on August 20 and will strenuously oppose your proposed modification of
the pretrial and trial schedule.
Please govern yourselves accordingly.
Larry Klayman
Counsel for Plaintiff
On Aug 12, 2015 12:40 PM, <Brian.Toth@hklaw.com> wrote:
Mr. Klayman,

Because we are at a discovery impasse with Plaintiff’s written objections and production, and
because we will not have resolution thereof until at least August 27, it is now apparent that we will
need to seek the modification of Judge Martinez’s scheduling order to extend the discoverycompletion date and, with it, the dates that follow.

We propose the following:

All discovery to be completed by November 20, 2015.

All dispositive motions to be filed by December 4, 2015.

• Calendar call to be held on April 5, 2016, for the two-week trial period beginning
April 18, 2016.

3

Case 1:15-cv-20782-JEM Document 102-1
100-1 Entered on FLSD Docket 08/14/2015 Page 5 of 5
These are modest modifications, and would put the remainder of this case comfortably within the
standard track described in the Local Rules.

Finally, again because we have not had resolution on the written objections and production, we will
be adjourning Mr. Montgomery’s deposition until a later date. We ask that you please hold
September 11 for his deposition (if the court does not extend the deadlines). But if the court does
extend the deadlines, then we will likely schedule Mr. Montgomery’s deposition for a later date -after he produces the software and our expert has an opportunity to analyze it.

Please let us know by noon tomorrow whether you oppose any or all of the relief sought.

Regards,

Brian Toth | Holland & Knight
Associate
Holland & Knight LLP
701 Brickell Avenue, Suite 3300 | Miami, FL 33131
Phone 305.789.7510 | Fax 305.789.7799
brian.toth@hklaw.com | www.hklaw.com
________________________________________________
Add to address book | View professional biography

NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to
whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail
from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe
anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to
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expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege
that may be available to protect confidentiality.

4

Case 1:15-cv-20782-JEM Document 102-2 Entered on FLSD Docket 08/14/2015 Page 1 of 2

Exhibit 2

8/14/2015
Case

1:15-cv-20782-JEM Gmail ­ Fwd: RE: Montgomery v. Risen ­­ motion to modify the scheduling order
Document 102-2 Entered on FLSD Docket 08/14/2015 Page 2 of 2

Fwd: RE: Montgomery v. Risen ­­ motion to modify the scheduling order

­­­­­­­­­­ Forwarded message ­­­­­­­­­­
From: <Brian.Toth@hklaw.com>
Date: Aug 14, 2015 2:54 PM
Subject: RE: Montgomery v. Risen ­­ motion to modify the scheduling order
To: <leklayman@gmail.com>
Cc: <daj142182@gmail.com>, <laurahandman@dwt.com>, <Sandy.Bohrer@hklaw.com>,
<MicahRatner@dwt.com>

Mr. Klayman,

Unless Judge Martinez orders otherwise, Defendants, in light of your position, will be moving forward with
Mr. Montgomery’s deposition in Miami on August 20.

Defendants, however, retain all rights to seek an additional deposition of Mr. Montgomery on all or any
information that Mr. Montgomery has objected to producing and that is the subject of the August 27 hearing
before Judge Goodman. In other words, if Judge Goodman orders that Mr. Montgomery produce information
that he has heretofore objected to producing, Defendants may seek an additional deposition of Mr.
Montgomery on that information. If that occurs, Defendants will seek reimbursement of all fees and
expenses incurred in connection with any follow‐up deposition.

Regards, 

Brian Toth | Holland & Knight
Associate
Holland & Knight LLP
701 Brickell Avenue, Suite 3300 | Miami, FL 33131
Phone 305.789.7510 | Fax 305.789.7799
brian.toth@hklaw.com | www.hklaw.com
________________________________________________
Add to address book | View professional biography 

From: Larry Klayman [mailto:leklayman@gmail.com] 
Sent: Thursday, August 13, 2015 6:52 PM
To: Toth, Brian W (MIA ‐ X27510)
https://mail.google.com/mail/u/1/?ui=2&ik=e027b36078&view=pt&search=inbox&msg=14f2e7e2a621a29d&siml=14f2e7e2a621a29d

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