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Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 2 of 99

IN THE UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA

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MIAMI DIVISION
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CASE NO.:

15-cv-20782-JEM

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DENNIS L. MONTGOMERY,

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Plaintiff, )
v.
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JAMES RISEN, et al.,
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Defendants. )
_________________________/

August 21, 2015

Pages 1 - 97

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DISCOVERY HEARING PROCEEDINGS

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BEFORE THE HONORABLE JONATHAN GOODMAN


UNITED STATES, MAGISTRATE JUDGE

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APPEARANCES:
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On behalf of the Plaintiff:
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KLAYMAN LAW FIRM


2520 Coral Way,
Suite 2027,
Miami, FL 33145
BY: LARRY E. KLAYMAN, ESQ.
BY: DINA JAMES, PARALEGAL

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APPEARANCES CONTINUED:

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On behalf of the Defendant:

Davis Wright & Tremaine


1919 Pennsylvania Avenue, NW
Suite 800,
Washington, DC 20006
BY: LAURA R. HANDMAN, ESQ.
BY: BRIAN W. TOTH, ESQ.

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Transcribed By:

Bonnie Joy Lewis, R.P.R.


7001 SW 13 Street
Pembroke Pines, FL 33023
954-985-8875
caselawrptg@gmail.com

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(Thereupon, the following proceeding was held:)

THE COURTROOM DEPUTY:

U.S. District Court for the

Southern District of Florida is now in session.

Jonathan Goodman presiding; Case Number 15-27082-cv-Martinez.

Dennis Montgomery versus James Risen, et al.

The Honorable

THE COURT:

Let's have appearances, starting first with the

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Good afternoon, folks.

Plaintiff.
MR. KLAYMAN:

Larry Klayman, counsel for Mr.

Montgomery, with my paralegal, Miss Dina James; D-I-N-A.

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MS. HANDMAN:

Laura Handman, counsel for the

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defendant, with Davis Wright Tremaine.

And with me --

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MR. TOTH:

Brian Toth for the defense as well.

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THE COURT:

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So I am starting a hearing now and it is five

Thank you, folks.

Please be seated.

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minutes before the scheduled 3:30 start, but we may need to

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take a break in the middle to deal with a criminal matter that

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was left over from the 1:30 calendar.

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long to address that matter once the Marshal Service brings in

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the missing defendant.

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already, but it has not happened.

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It should not take too

I was expecting that that would happen

So we are here on a discovery hearing.

And I know

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from a filing that Mr. Klayman made this afternoon with another

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motion, which is not before me, a response to extend certain

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deadlines, but in that response filed today, Mr. Klayman gave

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notice that Mr. Montgomery's deposition was taken yesterday,

correct?

MS. HANDMAN:

THE COURT:

Yes, Your Honor.

And that was a full seven-hour

deposition?

MS. HANDMAN:

THE COURT:

Yes, Your Honor.

And I would assume that the deposition

was taken in Miami and that would explain why all the

out-of-town lawyers are here today, correct?

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MR. KLAYMAN:

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THE COURT:

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Correct, Your Honor.

So I understand that there are several

discovery issues.
And I have to tell you that I read all the papers

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and you all submitted a memorandum and I read Mr. Klayman's

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submission, albeit not one directly in response to this

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discovery issue, but in response to the Defendant's request to

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extend certain deadlines.

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And I am summarizing here and basically, in this

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submission today that Mr. Klayman took the position that I have

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provided all the discovery.

The Defendants know that I have

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provided all the discovery.

They knew it at the time that they

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filed their discovery hearing.

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And in effect, Mr. Klayman is accusing the

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Defendants of acting in bad faith of conjuring up a non

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existence illusory discovery dispute because according to Mr.

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Klayman, my God, his client has turned over massive amounts of

material and the Defendants are simply harassing him.

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Is that a fair statement, Mr. Klayman, of your


filings today?

MR. KLAYMAN:

It is not quite that strong, Your

Honor.

It may be strong from time to time.

the information that is required.

seven hours yesterday.

and pain.

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We provided all

There was a deposition for

Mr. Montgomery was in great discomfort

And some day perhaps you might want to look at the

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video of that and he sat for seven hours.

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to ask followup questions for the documents that we provided.

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And they were able

Let me give you one example.

Income tax returns

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where they wanted to know why certain years were not available

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and he answered those questions with regard to why they had

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been not available.

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satisfied.

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We believe that everything has been

The only issue that has been outstanding here is

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the issue of Mr. Montgomery's software.

We believe that that

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software is likely classified.

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Montgomery has, for more than a year, has been coming forward

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as a whistleblower to the NSA, the CIA, the Department of

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Defense, the FBI, and the Department of Justice and other

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agencies, including Congress in trying to provide information

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to the FBI so they could look at it.

For the last year, Mr.

Because one of the things

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that he has that is not part of this lawsuit, is what appears

to be unconstitutional surveillance on hundreds of millions of

American citizens, including federal judges.

So that has been turned over to the FBI.

The FBI

is determining whether or not the software is classified or

not, but in any event, what has been alleged in the pleadings.

And I have copies by the Defendants in their Motion to Dismiss

that they have said to this Court this case can be dismissed

because all you need to rely on is public information and that

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was available in court documents and in testimony before

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Congress and you don't need any information from the

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government.

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And in fact, when I deposed Mr. Risen a while

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back, he confirmed that he did not have access to government

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classified information.

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because they have said it right up front that they are not

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relying on any government information.

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So it's a nonissue, the software,

And of course, we now know -- it has been in the

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news lately and we are not trying to sensationalize anything

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here, but the sensitivity of turning classified information

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over to a private source.

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difficulty these days for that and you just can't do it.

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the FBI has that and is analyzing the nature of that

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information.

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THE COURT:

Even Mrs. Clinton is in some

The FBI has the software?

So

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MR. KLAYMAN:

THE COURT:

MR. KLAYMAN:

They have the software, yes.

How did they get it?


Because Mr. Montgomery provided it

to them.

THE COURT:

When?

MR. KLAYMAN:

He provided it to them three days

ago.

provided them a lot of other information too, which they are

looking at because it is classified information and he is a

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It has been in the process to provide that to them and he

whistleblower.

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THE COURT:

Folks, excuse me, I think I saw the

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Defendant there.

So I am going to ask you to step back,

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please, and allow the Defendant to come in and we will let the

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prosecutor and the Public Defender's Office take their places.

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MR. Klayman:

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THE COURT:

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MR. KLAYMAN:

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anybody's way.

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(Recess.)

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You can leave them there, but it's up

to you.

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Leave our papers here?

THE COURT:

I just put them here so it is not in

Michael, do you need to call this case

back on the record or we are already there?


THE COURTROOM DEPUTY:

We're back on the record in

Case Number 15-CV-20782.


THE COURT:

Mr. Klayman, you were explaining to me

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sort of an update on what has been happening with the

discovery.

software which you and your client have repeatedly asserted in

this case is likely confidential, or possibly confidential, or

something like that as if.

And in particular, you were telling me about the

MR. KLAYMAN:

THE COURT:

Correct.

And you did mention to me three days

ago either you had or Mr. Montgomery submitted the software so

the FBI so the FBI could confirm one way or the other if the

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software contained classified information; is that correct?

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MR. KLAYMAN:

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THE COURT:

That is correct.

And so when this software was turned

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over three days ago, did either you, or Mr. Montgomery, keep a

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copy, or you just gave the software?

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MR. KLAYMAN:

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THE COURT:

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MR. KLAYMAN:

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THE COURT:

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besides the software?

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analyzing the software?

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No copies?
It was just the software and

relative to this case the software is included.

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We just gave it to them.

And what else did you turn over

For example, were there reports

MR. KLAYMAN:
it myself.

I don't know because I never look at

I don't want to look at it.


THE COURT:

It's not my province.

Do you have a feel generally by way of

a description of what was turned over, other than the software

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itself?

You told me that the software was only part of the

materials turned over.

MR. KLAYMAN:

THE COURT:

MR. KLAYMAN:

I'm sorry, Your Honor.

What other category of -Generally speaking, and this is a

matter of some confidentiality as well because there's an

investigation going on by the FBI, but generally speaking, the

part that is public is that my client, Mr. Montgomery, who was

obviously written up in Mr. Risen's book as being an effective

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franchise of the ability to analyze data, this encrypted data

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of terrorists doing business, so to speak, all the over the

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world in al jazeera and otherwise.

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He has information that government agencies, much

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like happened with NSA and Edward Snowden and others have been

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doing massive surveillance on American citizens, including

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federal judges, magistrates, members of Congress and others and

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operating illegally here in the United States, CIA.

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THE COURT:
question, sir.

I think I did a bad job of asking my

So I am going to try it again --

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MR. KLAYMAN:

Okay.

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THE COURT:

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I am not asking you to launch into an argument,

-- with my question.

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which quite frankly, is what you are doing.

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lot of rhetoric.

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I do not need a

Here is my question, Mr. Klayman.

MR. KLAYMAN:

Sure.

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THE COURT:

What else besides the software,

itself, was turned over to the FBI three days ago?


I'm following up on your comment that the software

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was only part of the information turned over to the FBI.

naturally, in my mind I am saying to myself, gee, I wonder what

else was turned over to the FBI beside the software.

That's the information I am looking for.

So

Tell me

in factual format the description of the other information

turned over besides the software.

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Please do it without

rhetoric and argument.

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MR. KLAYMAN:

I was trying to be as precise as

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possible based on what is publically known at this time.

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basically, is evidence of mass surveillance of American

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citizens.
THE COURT:

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MR. KLAYMAN:

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It includes credit card numbers,

banking information, names of millions of Americans.


THE COURT:

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That's really not what I was looking

for.

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for.

That is still not what I am looking

Let me do a better job.


Simply sort of a summary conclusion.

So is the

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type of other information e-mails, memos, phone records,

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regular old printed documents, data basis?

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You just told me it is evidence of mass surveillance.

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It,

MR. KLAYMAN:

I mean, what is it?

It would include --

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THE COURT:

MR. KLAYMAN:

What exactly was turned over?

listed.

THE COURT:

MR. KLAYMAN:

And anything else?


Not that I know of.

I have never

looked at the information.

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It would include what you just

THE COURT:

And who actually turned it over, you

or Mr. Montgomery?

MR. KLAYMAN:

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THE COURT:

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MR. KLAYMAN:

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THE COURT:

Mr. Montgomery.

Did you participate?


I was present.

We are going to really have a long

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hearing if you continue to clip me off before I finish my

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question.

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was going to ask, but you really need to let me finish asking

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the question.

Maybe you were going to correctly guess at what I

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MR. KLAYMAN:

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THE COURT:

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Sure.

So did you participate for the

arrangements for turning over this material?


Because I am guessing, just a guess, that Mr.

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Montgomery didn't just show up at the FBI headquarters in

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Washington, D.C., knock on the door and say, here, probably

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something had to happen before that.

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MR. KLAYMAN:

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THE COURT:

Am I right?

Correct.

Okay.

So tell me about the

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arrangements that led up to the turning over of this material

three days ago.


MR. KLAYMAN:

The arrangements were made through a

federal Judge in Washington, D.C. Lamberth, U.S. Court for the

District of Columbia who had contacted the FBI because of

information that Mr. Montgomery had.

And meetings were held with the general counsel of

the FBI working under the aegis of FBI director James Comey.

And consequently, as a result of that, the information was

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turned over.

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THE COURT:

All right.

And how was it that a

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district court judge in Washington, D.C. was involved in this

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situation?

Is there a lawsuit pending there?

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MR. KLAYMAN:

There is no lawsuit.

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I approached that judge because I know that judge

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and I have had cases in front of that judge.

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an extremely reputable and honest person with great integrity.

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THE COURT:

So when you say you approached the

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judge, did you file something in court?

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in his chambers?

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I know him to be

Did you just show up

I mean, how did this happen?

MR. KLAYMAN:

Long before this case was filed, we

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approached the judge in Washington and said how could we get

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this information to the government because Mr. Montgomery is a

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whistleblower and no one has wanted to listen to him so far.

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THE COURT:

And so when you made this approach to

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the judge, and the name of the judge again is?

MR. KLAYMAN:

THE COURT:

Royce C. Lamberth.

Right.

And so, before this lawsuit

was filed against Mr. Risen and other defendants, you contacted

Judge Lamberth?

MR. KLAYMAN:

THE COURT:

form of a pleading?

was that done?

Correct.

And when you did that was it in the

Did you just show up in his chambers?

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MR. KLAYMAN:

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THE COURT:

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MR. KLAYMAN:

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THE COURT:

How

We met with him in chambers.

In chambers?
Yes, with Mr. Montgomery.

And then, am I correct in

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understanding that at some point, Judge Lamberth ordered you to

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turn over that material to the FBI?

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MR. KLAYMAN:

No.

We asked him for his assistance

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on how we could come forward with that information because we

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thought it should be in the government's hands being that it is

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highly sensitive, that it is classified and even he was not

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able to look at it.

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I didn't look at it.

Nobody looked at it, but we

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wanted to come forward and because Mr. Montgomery, long before

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he became my client had been trying, as I mentioned earlier, to

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come forward as a whistleblower to various government agencies

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and nobody wanted to listen to him.

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THE COURT:
approximately when?

So this lawsuit was filed

Let me see.

Maybe I have it on my --

THE COURTROOM DEPUTY:

THE COURT:

THE COURTROOM DEPUTY:

THE COURT:

Of this year?
Yes.

So when was it that you approached

Judge Lamberth?

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February 24th, Your Honor.

MR. KLAYMAN:
I could go back and check.

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THE COURT:

October of last year, approximately.


I do not have the exact date.

All right.

And so what, ultimately,

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happened with Judge Lamberth, which led to the turning over of

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the software and the information to the FBI three days ago?

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You told me that he did not enter an order, correct?

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MR. KLAYMAN:

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THE COURT:

Correct.

Okay.

So what did he do?

Did he pat

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you on the back and say, Mr. Klayman, sounds like a good idea

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to me, go to it?

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document?

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good idea for you to receive this information?

Did he issue some kind of an ex parte

Did he contact the FBI and say I think it will be a

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MR. KLAYMAN:

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THE COURT:

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No.

What exactly happened?

Because I have

to tell you that it sounds somewhat unorthodox to me.


MR. KLAYMAN:
never been done before.

It is unorthodox because this has

We have never been in this situation.

I trust Judge Lamberth and I had a number of cases

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before him in the 1990s and after that was all over I got to

know him better.

consequently, he arranged because we needed to get this to the

highest levels of the FBI and also to the highest levels

potentially, of the Justice Department, this information.

So he arranged for meetings with the general

I didn't have any cases with him.

And

counsel of the FBI, James Baker, who then facilitated bringing

in agents, FBI agents, to acquire this information to collect

it and that's how it occurred.

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THE COURT:

All right.

And what, ultimately, led

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to the turning over three days ago of the information?

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FBI general counsel contact you or Mr. Montgomery and say,

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okay, now is the day, turn it over?

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turn it over?

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to but you were not required to?

Did they direct you to

Did they give you the opportunity if you wanted

MR. KLAYMAN:

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Did the

How exactly did that unfold?

Well, what unfolded, we had the

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meetings.

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works directly under the director James Comey, facilitated

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bringing in a team of agents to turn it over.

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U.S. attorney of the District of Columbia to supervise that and

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her name is Deborah Curtis.

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And the general counsel of the FBI James Baker, who

And assistant

So we've had -- we turned it over to both the FBI


and the Justice Department.

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THE COURT:

Jointly?

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MR. KLAYMAN:

Jointly.

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THE COURT:

Two copies, one for the FBI and one

for the Justice Department?

MR. KLAYMAN:

THE COURT:

Correct.

And was this done actually at the FBI

headquarters in Washington, or did some agent visit your client

at his home or residence, or some other place, and it was

turned over there?

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MR. KLAYMAN:
in Miami, in Miramar.

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It was done at FBI headquarters here

THE COURT:

And you and Mr. Montgomery went there

in person?

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MR. KLAYMAN:

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THE COURT:

Correct.

Along with Miss James.

And before this happened, given that

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the Defendants in this case had been repeatedly seeking this

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particular software and there was litigation over the

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discoverability and litigation and arguments raised about the

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secret nature, or alleged secret nature, or classified nature

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of this material, did you give the Defendants in this case

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advanced notice that you were going to be turning over this

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material to the FBI?

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MR. KLAYMAN:

We did not because this was not

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something that was done with the confidentiality, the cloak of

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confidentiality, but we did arrange, Your Honor, with the FBI

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that we do have continuing access.

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continuing access to documentation which is not classified, or

Mr. Montgomery has

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otherwise sensitive and privileged with regard to the

government.
So if there is anything that we need from what was

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turned over, it is still accessible to Mr. Montgomery.

THE COURT:

So I mean, this arrangement that you

just explained to me, especially this continuing access, is

there a written document outlining Mr. Montgomery's rights to

this information, a memorandum of understanding, an agreement,

a contract, something?

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MR. KLAYMAN:

There is a document that was

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produced.

It's a letter prepared by the U.S. attorney on

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behalf of the Justice Department, which says that, in effect,

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Mr. Montgomery has immunity for turning this over in terms of

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the documentation.

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THE COURT:

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than saying he has continuing access.


MR. KLAYMAN:

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do have.

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classified.

Okay.

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So he has, according to you,

continuing access to nonclassified information?


MR. KLAYMAN:

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Well, this is an agreement that we

It could be for anything that is not

THE COURT:

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Well, that is a little bit different

Correct, which has yet to be

determined.
THE COURT:

I understand, but he wouldn't have

continuing access to classified information.

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MR. KLAYMAN:

I would assume that's the case.

don't think anybody should have access to that.


THE COURT:

And how long did you anticipate it

will take for the FBI to determine one way or the other to

whether any of the information, including the software is, in

fact, classified?

MR. KLAYMAN:

Before I answer that, let me add one

other thing, which I think is important, is that Mr. Montgomery

will have a top secret clearance, an SAP clearance, S-A-P and I

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believe that he still has top secret clearance and it was never

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revoked.

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In order to revoke it you have to have a hearing

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and no such hearing ever took place.

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to that yesterday at deposition.

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deposition, when he was giving answers, to be careful not to

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reveal anything which may belong to the government.

I instructed him at the

And what was the last question, Your Honor?

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And in fact, he testified

apologize.
THE COURT:

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It might have been the previous

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question.

I had asked you is there some document that

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memorializes Mr. Montgomery's continuing access to

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nonclassified information which was turned over to the FBI?

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Your response was really a nonresponse.

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MR. KLAYMAN:

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THE COURT:

Yes, there is --

You have to let me finish.

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MR. KLAYMAN:

THE COURT:

I'm sorry.

Your response was he has immunity

pursuant to a letter drafted by the assistant U.S. attorney.

And my response was, well, there is a difference between

immunity for turning over information and having continuing

access.

So the question is, is there a document, a letter,

a memo, or anything else memorializing your comment to me that

Mr. Montgomery has continuing access to nonclassified

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information, which was turned over to the FBI?

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MR. KLAYMAN:

There is no such document, but there

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is an agreement between us which was entered into during the

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meetings if that would be the case.

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And it is my understanding, to answer your

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question, because now I remembered what your last question was

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is that the FBI is moving with great speed on this because Mr.

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Montgomery is seriously ill and he may not live.

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one of the reasons, Your Honor, we oppose any postponement.

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may not live at the time of any trial.


THE COURT:

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And that's
He

He may not be alive.

So I understand the general response

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that the FBI will be moving with all due diligence, with

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alacrity, with efficiency, et cetera, but those are just

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general adjectives.

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talking about a week, a month, six months, two years?

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you think?

It doesn't really give me an idea.

Are we

What do

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MR. KLAYMAN:

Well we have to get some feedback on

that because they haven't had an opportunity to go through it

yet.

There are a number of hard drives that were turned over.

THE COURT:

And is this afternoon, right here in

court, the first time that the Defense is learning that Mr.

Montgomery turned over the software that they've been seeking

for months to the FBI, or did they know about it before this

hearing?

9
10

MR. KLAYMAN:

He testified about it yesterday, Mr.

Montgomery.

11

THE COURT:

Well, I'm guessing that counsel may

12

have asked some of the same questions that I asked and perhaps

13

differently and perhaps additional ones.

14
15

All right.

So let me just hear from the Defense

for a minute.

16

MR. KLAYMAN:

17

THE COURT:

18

MR. KLAYMAN:

May I just add one last thing here?

Yes.
If possible.

The reason that the

19

software is not relevant to this matter -- and I have a copy of

20

the Motions to Dismiss that are still pending by the Defendant

21

if Your Honor would like a copy of it -- is that they argued

22

that they don't need government information for this case to be

23

decided.

24

upon information that was out in the public domain in testimony

25

before Congress, or prior articles written by Playboy Magazine

That everything that Mr. Risen published was based

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-- if you can believe that -- and others about Mr. Montgomery,

but they didn't have access to government information because,

you know, we made reference to the fact that he may have had

unauthorized access to classified information and they denied

that.

And when I took Mr. Risen's deposition -- and I

also have the deposition pages and I can cite them to Your

Honor -- he confirmed that he did not have access to classified

information.

So consequently, it's not relevant what is on

10

this software, which is believed to be classified because he

11

never relied on that and doesn't want to rely on that.

12

As Your Honor may know, Mr. Risen was involved in

13

a very controversial case with an individual by the name of

14

Jeffery Sterling, who was indicted by the Justice Department

15

for having one classified e-mail.

16

he got to the edge of being indicted himself for having access

17

to that.

And Mr. Risen was, himself,

The government did not proceed with that case,

18
19

presumably because they did not want to reveal the classified

20

nature of what he had gotten from Mr. Sterling.

21

dropped the charges just in the last few months.

So they

So Mr. Risen is very careful to say, at his

22
23

deposition, that he did not have access to classified

24

information.

25

at the testimony, it is clear that he did not and it is

He equivocated a lot, but in the end if you look

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confirmed by the Motion to Dismiss.

the Motion to Dismiss, the Defendants are arguing that there's

no need for classified information, Your Honor.

Martinez, you can dismiss this based upon a privilege that this

was all done from public information that has already been

produced.

is not even relevant.

In the first ten pages of

Judge

That's the basis of Chapter Two of this book.

THE COURT:

So it

Is there claims in this defamation

case that Mr. Risen, in his book, published the point that your

10

client basically bamboozled the government by selling defective

11

software?

12
13

Isn't that, basically, one of the main claims?


MR. KLAYMAN:

I wouldn't say that's the main

claim.

14

THE COURT:

That's one of the major claims?

15

MR. KLAYMAN:

16

THE COURT:

It's a claim.

Okay.

In order to defend against that

17

claim wouldn't the parties need to know whether the software in

18

fact worked or not?

19

case-in-chief or their defense case?

20

Isn't that a critical part either in your

MR. KLAYMAN:

That's not what they're resting

21

their defense case on.

22

said that this case should be decided, Your Honor.

23

And that's what I'm saying is that they

And they are unequivocal about that based on

24

testimony before Congress by individuals like Brennan of the

25

CIA with regard to other things that were available in other

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court documents and you don't even get to that point.

So what we believe, and Your Honor asked me the

question at the outset, we're accusing them of bad faith.

not accusing them of bad faith.

defense lawyers.

I'm accusing them of being

Defense lawyers, I was a defense lawyer myself,

civil and criminal.

Department and a defense lawyer at the same time.

break up AT&T.

10

I was a prosecutor for the Justice


I helped

So I know what complex litigation is about.

They're using this as a fulcrum, a wedge, to try

11

to get this case delayed.

12

am saying is that there is no need to delay the case.

13

is analyzing this right now.

14

discovery.

15

because the Defendant may be dead.

16

That is their intention.

And what I
The FBI

There is time to complete

And in any event, we can't put the trial off

We approached Judge Martinez on that very first

17

status conference months ago and that's why he set us so

18

quickly for trial.

19

saying they're doing their job as defense lawyers.

20

an ordinary case.

21

I'm

I am not accusing them of anything.

I am

This is not

It potentially is a case which involves, not in

22

part of the allegations of this case, but the other stuff that

23

Mr. Montgomery has deals with a massive breach of individual

24

privacy throughout the United States and that has nothing to do

25

with this case.

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THE COURT:

So let's assume that Mr. Risen based

his book only on public information.


If that published information included the

3
4

conclusion that the software is bogus and did not work, even if

he got that information publically, the key fact in the case

would be if that's truth was the software bogus or not?

So I do not really see whether it matters.

Whether or not the information that Mr. Risen relied upon is

public, or private, or confidential, or sensitive, or

10

classified.

11

defamation, Mr. Risen and the publishing company, created

12

defamation by falsely publishing the allegation that your

13

client sold bogus software, that did not work, to the

14

government.

15

One of the claims is that the Defense committed

And then, as part of your case-in-chief, to

16

demonstrate the falsity of that statement they have to prove

17

that the software, in fact, did work.

18

defense case whether or not it was their burden or not, they're

19

going to try to show that the software did not work.

20

that is still a relevant issue.

21

Explain to me why --

22

MR. KLAYMAN:

And as part of the

So to me

Based on the facts of this case,

23

Your Honor, that would respectfully not be a way that they

24

would go about defending themselves, I would think, and know.

25

One of the things that came out in deposition and in the

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 2625
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documentation -- because we had produced already about over

40,000 documents to the Defendants.

THE COURT:

Excuse me for interrupting.

By the way, I am never, ever impressed by that

argument.

Judge, I produced 35,000 documents.

documents.

8
9

Lawyers tell me those things all the time.

They say

I produced a million

And my response is, so what?


If you produce 50,000 documents and you still have

45,000 documents that you have not produced, I am not

10

particularly impressed by the 50,000 number.

11

documents, but there's one document that you did not produce

12

and that is the smoking gun document.

13

impressed that you produced the 50,000 documents if you are

14

withholding the one most important document.

many documents --

17

MR. KLAYMAN:

18

THE COURT:

19
20

I am not particularly

So by way of background, you have to tell me how

15
16

There is 50,000

It's the quality.

That to me is not really a critical

point.
MR. KLAYMAN:

What i'm trying to say is my

21

understanding is from Mr. Montgomery that we have produced

22

everything except the software.

23

THE COURT:

I am going to hear from the Defense,

24

but I am going to say, Mr. Klayman, that the Defense is going

25

to, one hundred percent, disagree with you.

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MR. KLAYMAN:

THE COURT:

MR. KLAYMAN:

Of course.

I am going to tell you that right now.


Of course, but let me finish the

point, if I may?

THE COURT:

Sure.

MR. KLAYMAN:

During the course of Mr. Risen

writing the book, he contacted Mr. Montgomery and he said this

is what I am writing.

Do you want to comment?

This is in the deposition yesterday.

Of course it

10

is under seal, okay, but this part is not really confidential.

11

In any event, we're not going to claim that.

12

that he would not correct what he was writing and he would not

13

write it as Mr. Montgomery saw it, that he did not in any way

14

defraud the government, or do the greatest hoax in American

15

history.

16

And he demanded

That's in the book, okay.


And I might add that Mr. Montgomery is sick and

17

Mr. Montgomery really can't defend himself.

18

me legal fees.

19

use Mr. Montgomery as a launching pad for his book that the

20

government, as a whole, had misused all this money in the war

21

against terror.

22

He is not paying

And we believe that Risen knew that he could

Mr. Risen does not like the government.

23

not like George W. Bush.

24

that the government has wasted all this money.

25

was, of course, the focus .

He did

He was selling this book on the basis


Mr. Montgomery

So he says to Mr. Montgomery,

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either you give me classified information or I'm going to write

this.

classified information.

And Mr. Montgomery says to him, I can't give you

That would be a crime.

Risen was doing the same thing that he was doing

to Jeffery Sterling.

Montgomery to give him classified information and Mr.

Montgomery did the right thing.

8
9

In effect, he was extorting Mr.

I might add that Mr. Montgomery, you know, has


done the right thing here.

10

Snowden.

11

Government.

12

Department lawyer.

13

responsibility, not just to courts, but also to the American

14

people to come forward with this.

15

He is here.

He is not in Russia like Edward

He is cooperating with the U.S.

And I can appreciate that as a former Justice


I feel that there is a great ethical

The bottom line is this, and this is why I say

16

this, is that Mr. Risen, in effect, acknowledged that he did

17

not have classified information and did not rely on it and he

18

made this stuff up out of whole cloth.

19

Montgomery was going to break the law and commit a crime that

20

he was going to defame my client.

21

THE COURT:

And unless Mr.

Mr. Klayman, I am going to take a

22

guess that the Defense is going to take defensive issue with

23

your allegations that in this deposition Mr. Risen admitted to,

24

quote, making this up out of whole cloth.

25

MR. KLAYMAN:

No, that's my characterization.

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THE COURT:

that in his deposition.

I think you just said Risen admitted

MR. KLAYMAN:

THE COURT:

Effectively, I said.

Well, that's how I interpreted it.

And as soon as I heard that I said, oh, my gosh, that would be

astounding and basically --

MR. KLAYMAN:

Mr. Risen is a highly intelligent

man and no one doubts that, but Mr. Risen has gotten himself

into trouble in the past.

10

As I said, he almost got indicted recently over

11

the Jeffery Sterling affair.

12

to be turning over classified information to him on threat that

13

if he didn't this is what Risen was going to publish.

14

And Mr. Montgomery was not going

So it is our position, our firm position, that

15

this information is not relevant.

I am not accusing Defense

16

counsel of bad faith or doing what Defense counsel do.

17

know, regrettably --

18

THE COURT:

19

It is what lawyers do.

You

Not just Defense counsel.


They make arguments

20

whether you are a Plaintiff's lawyer or a Defense lawyer.

21

have seen Plaintiff's lawyers take plenty of disingenuous

22

positions.

23

less disingenuous than Plaintiff's lawyers.

24
25

And I think Defense lawyers are not any more or any

I mean, American lawyers, when they do what they


do because they think they need to do it to zealously advocate

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on behalf of their client, but Mr. Klayman, you've spoken for

quite a long time and I am going to give you more time, but I

am going to shift to the Defense.

Have a seat.

MR. KLAYMAN:

THE COURT:

MS. HANDMAN:

8
9

Sure.

First of all, Counsel -Yes, Your Honor.

Nice to see you in

person.
THE COURT:

All right.

Thanks for that.

10

So please explain to me whether the software is

11

relevant and explain to Mr. Klayman that the software is not

12

relevant because Mr. Risen said that he did not rely at all for

13

his book upon classified information, but instead relied only

14

on things in the public domain.

15
16

So first, armed with that fact, is he contending


that the software is relevant; yes or no?

17

MS. HANDMAN:

18

THE COURT:

19

MS. HANDMAN:

Yes, it is critically relevant.

Why?
Because as Your Honor correctly

20

pointed out, our Motion to Dismiss did not address one critical

21

defense, which is that Plaintiff has the burden, actually, of

22

showing that what we wrote was substantially false.

23

And you are absolutely right, Your Honor, that the

24

crux of the claim is that he claims that we falsely said that

25

he was selling bogus software to the United States.

And that

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 3130
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is the claim, as Mr. Klayman quite correctly says, all this

deal about mass surveillance and the NSA, that's another case

that Mr. Klayman has.

It has nothing to do with this case.

And the software, we have hired a software expert

to analyze whether this software, the software that was part of

that in 2003, the company he was with in 2003.

subsequently, in 2006 and 2007 and 2008, whether that software

works or not.

And then,

And we found out for the first time yesterday that

10

he had given it to the FBI.

11

we've heard today about Judge Lamberth, who I know well, too,

12

and going to the FBI, et cetera.

13

He did not give us this story that

He just said that he turned it over to the FBI and

14

he did not keep a copy of his own software.

15

that he knew we were seeking the software.

16

to say the least.

17

all, the subject of the prior proceedings in Nevada.

18

Notwithstanding
That was shocking,

And this is software that is also, first of

THE COURT:

Right.

I read that opinion where the

19

court concluded that the software was not classified and

20

ordered Mr. Montgomery to turn it over.

21

do it, the judge held him in contempt and he, ultimately,

22

entered into a consent and later filed for bankruptcy.

23

aware of that history.

24
25

MS. HANDMAN:

And when he refused to

So I am

And that's even Mr. Klayman recounts

in the case in the supplemental filing that we made on Monday

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in the Ninth Circuit.

of Nevada has already ruled that the data documents,

intellectual property, tangible objects, and personal property

at issue in this case.

Arpaio, belonged to Dennis Montgomery.

classified.

7
8

He says that the Court for the District

THE COURT:

This was the case before Arpaio, Judge


None of it was

I don't think it is Arpaio.

I think

it is --

MS. HANDMAN:

It is Judge Snow who made -- and

10

Judge Snow ordered that some of the documents that Mr.

11

Montgomery had given to the Maricopa Sheriff's Department be

12

handed over to the Department of Justice.

13

We have notified, as Mr. Klayman knows and as we

14

put in our papers, we notified the lawyers in the DOJ who

15

participated in the Nevada proceedings that entered into the

16

protective order in the Nevada proceedings that have

17

participated in the Arpaio proceedings.


And we notified them about what we had requested

18
19

and what was the Plaintiffs' response saying it was classified,

20

that this hearing was going on, that the deposition was

21

yesterday.

22

government can assert the state's secrets privileged.

And they have chosen not to appear and only the

And I don't even know where to begin on some of

23
24

what Mr. Klayman has said about Mr. Risen.

25

very clear.

I just want to be

He was never under indictment or indictment

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 3332
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threatened.

He was part of a weak investigative prosecution

and the government had talked about seeking his testimony.

had asserted the reporter's privilege.

ultimately, did not call him as a witness.

to a head, but there was never any question of criminality by

Mr. Risen in that case.

THE COURT:
practicality.

and information that you're seeking.


MS. HANDMAN:

11

THE COURT:

Right.

But right now, let's just talk about

the software.

13

MS. HANDMAN:

14

THE COURT:

16

So it didn't come

I know there are other categories of documents

10

15

The government,

Let's talk for a minute about

12

He

Correct.

Because that, to me, seems to be a

critical part of the case.


Mr. Montgomery, as part of his case-in-chief, we

17

need to demonstrate the substantial falsity of the claim in the

18

book that the software did not work.

19

And although you might not be under a burden to

20

prove it the other way, as Defense lawyers you certainly would

21

want to find out factually whether the software worked or not,

22

whether it was bogus or not.

23

So I agree with you that the software is highly

24

relevant for the case.

All right.

Fine, but now we have this

25

significant development that the software is no longer in Mr.

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Montgomery's possession.

Apparently, according to this process, which has been under way

for many, many months before the lawsuit was even filed and did

not keep a copy.

He turned it over to the FBI.

So this comes up a lot of times in discovery

disputes, not in this particular way, but the issue is I cannot

get blood out of a stone.

turn over the software, can I?

I cannot now order Mr. Montgomery to


Because he does not have it.

So what would you have me do now, vis-a-vis this

10

software that your expert wanted to evaluate to see whether it

11

worked or not?

12

MS. HANDMAN:

Well, first of all, it is unclear to

13

me why this software would be part of the whistleblower case

14

about government surveillance, which even Mr. Klayman says is

15

not part of our case.


But assuming, taking at face value what Mr.

16
17

Montgomery has said and Mr. Klayman has said today, first of

18

all, Mr. Klayman said that Mr. Montgomery retains access to the

19

software.
THE COURT:

20

Actually, what he said was, he retains

21

access to the nonclassified software, but that agreement is

22

nowhere memorialized in writing and is some sort of oral

23

understanding that he has with either the AUSA or the Justice

24

Department, but that is his understanding of his client's

25

rights.

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MS. HANDMAN:

I mean, this is his software.

So it

is unclear to me exactly why it would involve any classified

information to begin with.

But even so, you know, we could proceed and we are

planning to proceed on a number of issues to obtain from the

government what Mr. Montgomery has refused to produce.

For example, he pleads over and over in

declarations and amended complaints that there are government

tests validating his software.

10

He has not produced those and

that, obviously, is also critical to this whole situation.

11

And yes, we relied on that.

What we relied on was

12

filed judicial pleadings that had interviews with former

13

employees that said that he had these tests in front of the

14

government in order to pretend that the software, the visual

15

recognition software, worked.

16

THE COURT:

I'm sorry, Counsel.

17

You are sort of doing what Mr. Klayman did.

18

MS. HANDMAN:

19

THE COURT:

I apologize.

You are kind of launching into

20

argument and rhetoric and you are not merely addressing my

21

question.

So let me focus your attention on this.

22

MS. HANDMAN:

23

THE COURT:

Yes.

What relief would you like me to give

24

you now, vis-a-vis, the software?

25

you have been asking for it.

I know you want it.

I know

I know you want your expert to

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evaluate it.

So in effect, although in my cases you cannot file

a Motion to Compel.

You simply file a discovery hearing

notice, but in reality you are seeking an order compelling the

production.

MS. HANDMAN:

THE COURT:

Correct.

The problem is based on what we just

heard, and apparently based on Mr. Montgomery's testimony

yesterday, that he no longer has the software.

10

So I am sitting up here saying, I can only be

11

asked to provide certain relief.

So tell me what you would

12

like me to do.

13

you have me order Mr. Montgomery to produce the software

14

knowing that he does not have it and it is in the possession of

15

the FBI?

If you had your druthers, your wish list, would

Do you want me to enter an order requiring the FBI

16
17

to turn it over to you?

I mean, tell me, practically speaking,

18

are what do you want me to do?


MS. HANDMAN:

19

Well, first of all, I would

20

initially suggest that you do order Mr. Montgomery to produce

21

the software.

22

THE COURT:

That's sort of a meaningless order.

23

MS. HANDMAN:

Well, except that he does have

24

access to have him seek access to his own software from the FBI

25

and produce it to us if indeed that is, in fact, what has

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happened.

Secondarily, you could ask us to notify or you

could order us to notify the people we have notified and tell

them about what is being said here.

THE COURT:

Which people is that?

MS. HANDMAN:

He said the two DOJ lawyers who have

been involved in past dealings with Mr. Montgomery in Nevada

and in Arizona.

THE COURT:

Are these the same government lawyers

10

who are involved in this Judge Lamberth arranged turnover of

11

software to the FBI?

12

It sounds like we are talking about a different

13

lawyer.

It sounds like Mr. Klayman was talking about a local

14

AUSA in the D.C. office of the U.S. Attorney's Office and not

15

to the two DOJ lawyers that appeared in Nevada.


MS. HANDMAN:

16

The DOJ lawyers that are in the

17

special programs branch of the DOJ and they have appeared in

18

the Arizona case and in the Nevada case.

19

for example, a deposition that Mr. Montgomery gave in one of

20

these litigations to ensure that classified information wasn't

21

revealed.

And they attended,

22

If you want to order us to notify them or the FBI

23

that this is part of this proceeding and we are seeking access

24

to it, I would be happy to do that.

25

notified them of the basic -- and I will tell you why this does

As I said, I have already

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come as something of a shock.

Mr. Klayman filed, in a lawsuit that he has

against the Obama Administration involving NSA surveillance a

notice before a different federal judge in D.C., Judge Leon,

asking him if Mr. Montgomery could come and appear and testify

in camera ex parte about the NSA surveillance.

This was filed after Mr. Klayman says he

approached Judge Lamberth.

So as far as I know, Judge Leon had

not ruled on that last I looked and Mr. Klayman may know if

10

there has been any further rulings.

11

Department did appear and opposed the request.

12

And in that the Justice

So there are DOJ lawyers already involved in some

13

of these aspects of this.

14

know, give them notice because as I said, the fact that he

15

turned over the only copy he had of his own software to the FBI

16

two days ago, three days ago, was news to us.

17

will be somewhat news to the Justice Department.


THE COURT:

18
19

to contact the DOJ.

20

right?

21

And I am happy to bring them, you

And I suspect it

Well, you don't need me to require you

You can certainly do that on your own,

MS. HANDMAN:

I can and I have and I will send

22

them this transcript.

But I do think, Your Honor, ordering Mr.

23

Montgomery to produce it because, honestly, I would be -- where

24

he had an obligation to retain a copy of his software while it

25

was under subpoena here, I think Your Honor should order it and

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order him to seek it from whoever he gave it over to.

So that would be my practical solution for that

and that is only just sort of the beginning of the questions, I

think, that are raised here.

THE COURT:

Let me interrupt for a minute.

So Mr. Klayman, if I were to enter an order

requiring Mr. Montgomery to take advantage of his right of

access to the materials that he turned over to the FBI, why

couldn't he simply say give me back my software, or give me a

10

copy of my software so I could produce it to the Defendants in

11

this lawsuit?

12

MR. KLAYMAN:

Notwithstanding my other arguments

13

that is something that could be done, Your Honor.

14

just correct the record here because there were misstatements

15

that were made, hopefully inadvertent.

16

But let me

Number one, the number one national security

17

lawyer in the United States for the Justice Department is the

18

person that Mr. Montgomery was dealing with, Deborah Curtis.

19

She has won every award at the Justice Department.

20
21
22

THE COURT:

Is she in the Justice Department or is

she at the U.S. Attorney's Office.


MR. KLAYMAN:

She's in the District of Columbia.

23

They, and the Eastern District of Virginia, handle most of the

24

terrorism cases in the United States.

25

Justice Department lawyer.

She's the number one

This guy, Mr. Gomez, is in the

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 4039
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civil division, special proceedings branch.

specialty.

This is not his

Number two, Mr. Montgomery was dealing at the

3
4

upper reaches of the FBI, the director himself, James Comey,

who had the courage -- he's a very honest man as I am sure you

have read -- who had the courage to even tell George W. Bush

and then Attorney General Gonzalez that they couldn't engage in

wholesale Internet surveillance of all American citizens.

a very courageous FBI director and he's been dealing directly

10

-- Mr. Montgomery has been dealing directly with the FBI

11

director.

12

So this is inconsequential.

He's

At the outset of the

13

deposition yesterday, I believe for intimidation purposes, Miss

14

Handman gratuitously offered that she has been in touch with

15

Mr. Gomez of the Justice Department and this is really

16

complicated what happened and what is happening in Arizona.

17

And I don't think Your Honor probably wants to

18

hear all of it, but there is a federal judge out of there --

19

not of your caliber -- who is essentially out of control.

20

actually ordered Mr. Gomez to come in and get documentation

21

from Mr. Montgomery.

22

doesn't mean it isn't classified.

23

he wants to be named a justice.

24
25

And

He does own the software, but that


And consequently, frankly,

I did advise Miss Curtis of the civil litigation.


I was completely open with her as to what was going on, but the

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 4140
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FBI is still going to need to determine and the Justice

Department whether it is classified.


And that is something that we want to do for

3
4

everybody.

important as he is, but we are here for the people of the

United States and the System of Justice.

We are not just here for Mr. Montgomery, as

THE COURT:

Correct me if I'm wrong, but didn't a

district judge in Nevada already conclude that this software is

not classified?

10

MR. KLAYMAN:

11

THE COURT:

12

MR. KLAYMAN:

13

THE COURT:

14

MR. KLAYMAN:

That decision, okay, was based --

First just answer my question.


I didn't read it that way.

You didn't?
No.

I read it that he, basically,

15

was giving the information back to Mr. Montgomery because those

16

Justice Department laws, including Mr. Gomez, had participated

17

in providing false affidavits to the court and they could not

18

prove up probable cause and that's the reason it was given

19

back.

20

But out of an abundance of caution, the FBI

21

obviously needs to take a look at this.

22

U.S. National Security.

23

THE COURT:

We cannot compromise

Mr. Klayman, let's take it a step at a

24

time because like many lawyers, you seem to have difficulty

25

answering a simple question with a yes or no.

You are not

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2

unique in that regard.

Many lawyers are like that.

So here is my first question that should either be

yes, no, or I don't know, for the answer.

enter a written order in which the judge said that the very

software at issue here is not classified; yes or no?

MR. KLAYMAN:

Honestly, I don't know.

Did the Nevada judge

I don't know.
What I do know is what I

told you is that the efforts to gain that information were

quashed because of false affidavits that were submitted by,

10

among others, with the participation of Raphael Gomez of the

11

Justice Department.

12

An illegal search and seizure was conducted on Mr.

13

Montgomery's house.

14

making that decision, I don't know.

15

So whether the judge erred or not in

THE COURT:

Let me ask Miss Handman because I

16

think you attached, as an exhibit to your papers, a copy of

17

this Nevada order.

18
19

Didn't the judge there say that the software was


not classified?

20

MS. HANDMAN:

Yes, Your Honor.

21

And indeed, and that's why he was able to order

22

and hold Mr. Montgomery in contempt for failing to produce it.

23

And again, Mr. Klayman, in the Ninth Circuit last week said --

24

cited the Nevada Court has already -- this is Roman v -- the

25

U.S. District Court for the District of Nevada has already

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ruled that, one, the data, documents, intellectual property,

tangible objects, and personal property at issue in this case

belong to Dennis Montgomery.

U.S. Government was required to --

THE COURT:

None of it is classified and the

Okay.

So Mr. Klayman, you just told

me no less than a minute and-a-half ago that you, quote, didn't

know, closed quote, if the district judge had designated this

material as classified information.

minute ago.

10

MR. KLAYMAN:

11

THE COURT:

You just said that to me a

The way I read --

Defense counsel just read from a

12

memorandum that you filed in which you specifically said that

13

the judge indicated the information was not classified.

14

How can you take two completely different

15

positions because it sounds to me like you are rapidly losing

16

credibility, Mr. Klayman.

17

one thing to me now and say the exact opposite in a memorandum.

18

Could you explain that to me, please?

19

MR. KLAYMAN:

I cannot imagine that you can say

Maybe what was written was written

20

by somebody else who wrote the brief.

Number one, I am not

21

casting blame.

22

didn't read it that way because there were a number of

23

decisions here.

I didn't write the brief, but number two, I

24

There was a magistrate that was issuing rulings.

25

It wasn't a circuit court and we don't know whether or not it

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is classified or not.

Nevada was just to come in and make an argument in terms of Mr.

Montgomery's ability to make an argument as to that

information.

But what we have been trying to do in

I don't know what's in it because I've never

looked at it.

misspoke and I will correct it, but I did not take that as a

definitive determination of whether it was classified because

no one has looked at it before.

10

Okay.

And if we misspoke there, then, we

MS. HANDMAN:

Your Honor, Mr. Klayman also filed

11

on his own behalf in Arizona on the same day the same language

12

in his own motion before Judge Snow.

13

I would say one other thing which we alluded to in

14

one of our footnotes in our filing.

15

the software we would be, we believe, entitled to either a

16

dismissal of the case, or at least an adverse inference, or a

17

factual finding that the software did, in fact, not work.

18

So that is the ultimate outcome, I think, if

19

indeed we don't have access to that software for whatever

20

reason, whether because there are no further copies or the

21

government won't give it to us.

22

If we are not able to get

That is the final solution, shall we say.

And in

23

my judgment, it ends the case.

And Mr. Klayman is well aware

24

of this happening in other liable suits that he has brought

25

where the presence of classified information resulted in

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2

dismissal.
So that, I think, if we don't -- I don't know that

we need to reach that at this point, but that is certainly a

possibility as the outcome here.

THE COURT:

Let me say this.

I am not at a discovery hearing that is simply

issuing a ruling, or entering a default against Mr. Montgomery,

or dismissing the case, or concluding that you are entitled to

an adverse inference, or even a rebuttable presumption.

10

If you want that kind of relief you are going to

11

need to proceed through a separate motion, either an

12

exfoliation motion, or a motion that you have been handcuffed

13

and you cannot adequately present your defense.

14

to do in that.

15

MS. HANDMAN:

You know what

Yes, I am not suggesting that this

16

is the time or place.

17

relief and, ultimately, that would be the relief if, indeed, we

18

don't have access.

19

not limited to the software.

20

I am just suggesting you would ask what

I would say that this discovery dispute is

THE COURT:

Let's shift to other categories.

21

let's do that.

22

can do today concerning the software.

23

So

I think we have pretty much exhausted what we

Mr. Montgomery no longer has it and you have asked

24

me, in any event, to enter an order requiring him to turn it

25

over which would, in effect, require him to contact the FBI and

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say give it back, or give me a copy.

And then, Mr. Klayman will respond in kind and I

have a feeling of what he is going to say, which is I cannot

turn it over -- Mr. Montgomery cannot turn it over -- because

we have to wait for the FBI to decide one way or the other if

it is classified.

That's your position, Mr. Klayman?

MR. KLAYMAN:

And what I said was that we did inform the

Correct.

10

assistant U.S. attorney, Deborah Curtis, of the civil

11

litigation.

12

they agreed to move quickly.

13

to do everything according to the law and that's important.

14

And just to correct what you said before, Your

15

Honor, with regard to decisions in Nevada there are varying

16

decisions all over the place here on the matter.

17

thing.

18
19
20
21

We informed her of the need to move quickly and

THE COURT:

And we informed them that we want

Is there a Nevada decision of any kind

concluding that this software is classified?


MR. KLAYMAN:

No one ever looked at the issue.

That wasn't litigated.

22

THE COURT:

23

MR. KLAYMAN:

24

back and look at these decisions also.

25

That's one

THE COURT:

Is there a -I don't know of one, but I will go

Mr. Klayman, what you do is you make a

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comment and, then, the implicit inference is, well, maybe there

is some Nevada decision out there going the other way.

I am talking about a particular order that the

Defense attached as an exhibit, which I read to prepare for

this hearing.

software is not classified.

And in that order it said this particular

Then, the Defense called my attention to written

memoranda that you and your organization had filed in which you

concede that the Nevada judge found that the software was not

10

classified.

11

Then, you told me something different here in

12

court this afternoon when you said you did not know one way or

13

the other if a Nevada judge ever said that it was not

14

classified.

15

Then, you tell me that maybe you misspoke.

Then,

16

you tell me that maybe some other lawyer prepared the memo and

17

you did not have a chance to read it.

18

And now, you are saying to me, well, there are

19

plenty of Nevada opinions out there suggesting the way I took

20

it, sir, suggesting, well, maybe some other Nevada opinion came

21

to a different conclusion that it is classified.

22

So my question is, as we sit here today, are you

23

aware of any Nevada opinion describing, or finding, or holding

24

that this software contains classified information; yes or no?

25

MR. KLAYMAN:

No, I am not aware of it.

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THE COURT:

Okay.

MR. KLAYMAN:

That is what I figured.

If I was all over the line, I

apologize, but what I was trying to say was no one knows

whether or not it does or it doesn't and that was written in a

brief by some other counsel that works with me.

that it should be potentially corrected because no one knows.

No one knows.

THE COURT:

MR. KLAYMAN:

10

THE COURT:

And I agree

Just so I am clear -Yes.

This lawyer that you have it out at

11

the nation's expert as classified information, Deborah Curtis,

12

just so I am clear, she's an assistant United States attorney

13

as opposed to a DOJ lawyer and main justice.

14

assistant United States attorney working in the United States

15

Attorney's Office for the District of Columbia; is that

16

correct?

17

MR. KLAYMAN:

Correct.

She's an

She's working underneath

18

an individual by the name of Mr. Malice.

19

criminal division.

He is chief of the

20

THE COURT:

21

MR. KLAYMAN:

22

THE COURT:

23

MR. KLAYMAN:

24

He is chief of the criminal division and she is

25

Mr. Malice?
M-A-L-I-C-E.

First name?
I don't remember the first name.

one of the number one -- if you just do a Google search, Your

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Honor -- experts in national security information.

THE COURT:

All right.

So what I hear you

representing to me is that in making the arrangements to turn

over this software and other materials to the FBI, you advised

AUSA Curtis about this civil litigation?

MR. KLAYMAN:

THE COURT:

Correct.

And we need for the FBI to proceed

quickly and make a determination one way or the other whether

this software is classified and you told her that?

10

MR. KLAYMAN:

11

THE COURT:

Correct.

And you also told her that in the

12

civil litigation the Defense had requested the software so that

13

their expert could examine it?

14

MR. KLAYMAN:

I told her that we wanted continued

15

access to this information because we have civil litigation

16

pending.

17
18
19

THE COURT:

That sounds to me like your way of

saying, no, you did not -MR. KLAYMAN:

No, I didn't specifically talk about

20

this matter, but we got an agreement that anything that is not

21

classified we have access to and that would include this.

22

THE COURT:

So let's go on to the next category

23

because I think we have exhausted, for now, the concept of the

24

software and there are a whole bunch of different categories.

25

Which one would you like to take next, Miss

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Handman?

MS. HANDMAN:

Well, actually, I wanted, as you

know we said there was more that we wanted to discuss that we

didn't brief and I think it's an overarching problem.

As you know, you have very specific rules that say

that you cannot respond, I think, by saying here is my

objection, notwithstanding objection, I am going to produce

what I think is relevant.

virtually every interrogatory and virtually every document

10

That was the consistent answer to

request.

11

THE COURT:

I read it.

12

There are more carved out exceptions and

13

qualifications than I have ever seen, Mr. Klayman, in your

14

interrogatory response.
My gosh, it was like a lawyer's opinion letter

15
16

where you cannot even figure out what they are saying.

17

we say this, but we reserve our right to supplement this by

18

saying this.

19

Well,

We do not mean to concede this other point.


It was, quite frankly, a remarkable series of

20

responses that I have never seen before.

21

exceptions, and caveats, and carve-outs, and qualifications.

22

My gosh.

There were some

It is hard to figure out what you are

23

objecting to and what you were turning over, but it is now

24

getting close to 5:00.

25

attention on the specifics.

And so, I really want to focus our


I understand that you are not

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happy with Mr. Klayman's general format of responding.

am not crazy about it either because, quite frankly, it

violates the discovery rules applicable in this case.

aware of that.

Let's move on to a different topic.

And I

I am

Income tax

returns, medical records, things like that.

The category that

you have pinpointed in your hearing notice and your memorandum.

Which ones would you like to take first?

MS. HANDMAN:

Well, let me say one more point, if

10

I might, Your Honor because of the format.

And what came

11

through loud and clear in the deposition yesterday and the

12

discovery they have produced because they have not produced all

13

of the documents that we have requested.

14

And for example -- and I will just give you one --

15

we asked for all communications relating to this topic with the

16

persons named in the initial disclosures by the parties.

17

of them was the person that Mr. Montgomery worked for, for more

18

than four years.

One

Out of that we got five e-mails.

We had from other sources other e-mails between

19
20

them that were critical e-mails that were not produced.

21

how would we know that?

22

responses.

23

move on to the other things.

And

We didn't have that based on the

And that was only one example, but I am happy to

24

Income tax --

25

THE COURT:

Excuse me.

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This, again, happens frequently in discovery

disputes.

One party asks the other party for a certain

category of documents.

of documents.

The response is paltry.

It's a couple

And the party who requested the documents already

has, in its possession, a lot of documents which they take from

other sources.

side is withholding documents and it is not producing it.

do we know?

10
11

And they say, aha, you see, Judge, the other


How

Because we have a lot of these other documents

ourselves from other sources.


And the simple answer may be -- I am not saying it

12

isn't here -- but it may be that the opposing party, the one

13

who is responsible for producing discovery in this case does

14

not have that material anymore for whatever reason.

15

So maybe Mr. Montgomery only has now, years later,

16

five documents.

Maybe you have found 50.

17

you do not believe him.

18

think he is intentionally withholding the other 45, or more

19

than 45, but it could be.

20

truth is that he may as of now only have five.

21

but that argument, while interesting, does not necessarily

22

carry the day for me because it only goes so far.

Maybe you are suspicious.

Who knows?

Do you see what I am saying?

24

MS. HANDMAN:

Yes.

Maybe

Maybe you

It could be, but the

23

25

All right.

I cannot say,

I mean, that's in part what

your rules are designed to flush out so we know is this all

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5352
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he's got or is he withholding anything?

So that's why I think

it is important that the format be adhered to, but let me go on

to the topics because --

THE COURT:

Sure.

MS. HANDMAN:

The issue of domicile, Mr. Montgomery's domicile

-- they are very important.

is critical on the threshold questions of whether there is

personal jurisdiction over Mr. Risen.

here.

10
11

THE COURT:
all discovery.

12
13

Whether venue is proper

Really, it is all relevant and it is

You do not need to persuade me of that.

MS. HANDMAN:

Well, here is what we learned

yesterday.

14

THE COURT:

Okay.

15

MS. HANDMAN:

That Mr. Montgomery has not been

16

here in Miami until Monday.

He is using a friend's apartment,

17

a room in a friend's apartment.

18

will pay rent as needed, but he hasn't paid any rent.

19

in Washington State.

The friend is there and he


He lives

20

As his lawyer represented just yesterday and last

21

week to the Court in Nevada, the criminal court in Nevada that

22

has postponed his appearances for prosecution in Nevada.

23

last week he said that he was too ill to travel to Nevada from

24

Washington State to appear in the Nevada criminal proceedings.

25

Just

Yet, he was able to come all the way across the

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5453
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country to Miami to pursue his own lawsuit and sit for seven

hours.

presented just the day before, his lawyers presented

information from a doctor saying he was too sick to travel.

I agree with Mr. Klayman, they were grueling.

And he

So this bears on both the medical records and on

the domicile.

with his friend saying he's trying to pursue this.

is looking for assisted living to move to.

of his stuff yet.

10

He says he has no lease.

No written document
He says he

He hasn't moved any

We are entitled to as much -- he won't produce any

11

-- I asked him directly.

He gets social security disability

12

insurance?

13

you have a bank account here in Miami?

14

CitiBank.

It's apparently deposited in his bank.

I said, do

I don't know.

It is

I don't know.
We are entitled to have that information.

15

That's

16

is one of the indicia of domicile because what he said in his

17

interrogatory, when asked where he is residing, he gave the

18

address of his friend where he came on Monday and is, you know,

19

using a room.

20

That is his residence.


And yet, he admitted in testimony that he has been

21

in Washington State now for years, frankly.

22

to be moving to Florida at some point, but he is clearly not

23

residing here.

24
25

And he may intend

So what we think he needs to be frank and fix the


interrogatory responses and, obviously, we will bring this to

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the attention of Judge Martinez so that he has additional

information to rule on this, but there are other kinds of

documentation of domicile that we would ask for.

has gotten a phone number here.

That kind of thing.

THE COURT:

Well, when did he get it?

And you are sort of mixing and

matching a couple of different topics.

medical records to the domicile.

He says he

You sort of added in

So right now I am a very linear compartmentalized

10

person.

I am plotting.

I go very slowly one issue at a time.

11

I am very difficult with multitasking.

12

person who can send text messages and listen to music and

13

upload a photograph on Instagram all at the same time.

I am not a 25-year-old

14

MS. HANDMAN:

I understand.

15

THE COURT:

16

So domicile, I agree you are entitled to all that

One step at a time.

17

information that you asked for.

It is relevant.

18

do not want to state for certain, Mr. Klayman's argument, but

19

my impressions from reading his papers is -- Mr. Klayman, you

20

will tell me if I am right or not -- I think Mr. Klayman takes

21

the position that we have turned over all responsive documents

22

concerning domicile.

23

Is that your position?

24

MR. KLAYMAN:

25

THE COURT:

I think and I

Correct.

So what more is it that you would like

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me to do?

He says he does not have it.

I know you don't

believe him.

and you secretly think that he really has documents.

think that?

I know you think that he is being disingenuous


Don't you

MS. HANDMAN:

I am not suggesting that.

What I am suggesting is that he refused to

produce, for example, bank records that would show whether he

has moved his bank account where the Social Security is

deposited to Florida.

10

That, the courts say, is one indicia of

domicile and we asked that and he has refused to --

11

THE COURT:

Stop.

12

Mr. Klayman, have you produced bank records to

13

reflect one way or the other the location of the bank where Mr.

14

Montgomery's Social Security deposits are directly deposited;

15

yes or no?
MR. KLAYMAN:

16
17

We have objected to that, Your

Honor.
THE COURT:

18
19

No.

That objection is overruled.

Produce

those documents.

20

MR. KLAYMAN:

May I add one thing?

21

Yesterday during the deposition because we took

22

the position that these things would become relevant, Your

23

Honor, I've been polite.

24

controversy.

25

Miss Handman had not provided correct information to this Court

I did not want to create a

One time in an earlier hearing, I mentioned how

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about Mr. Montgomery registering to vote.

She actually signed

a sworn declaration that he was not registered to vote.

that is blatantly false, but I am being polite because I don't

agree with her recitation of the facts here.

time with telling the truth.

Now

She has a hard

THE COURT:

Wait a second.

Right now I am talking about the representation

that she made that your client has not produced the bank

records to reflect the location of the bank where his Social

10

Security deposits are deposited.

Is that correct?

11

MR. KLAYMAN:

That is correct.

12

But he testified yesterday that he is using

13

National Bank, CitiBank and I believe it was Bank of America.

14

They are national banks.

15

he is getting it.

16

because that's through a national bank and it doesn't matter

17

whether he is a resident of Florida or not.

They don't have any one location and

He is currently getting it in Washington

And we have produced all the information about his

18
19

residency here, but he has voter registration here.

20

telephone number here.

21

telephone numbers in Miami.

22

here and he testified as to that and that he could not travel

23

because he fell and hurt himself.

I believe we have produced that, the


He has made arrangements to live

See, this is a characterization of the testimony

24
25

He has a

Your Honor.

We can certainly be happy to put forward his

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5857
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testimony, but it was seven grueling hours and he did not

refuse to answer any questions in this regard.


So I don't understand why she is trying to create

3
4

this kind of smoke here.

an operation for his brain aneurism to come here and testify,

which is why he is so sick.

beginning of his deposition.

THE COURT:

We've been forthcoming.

He put off

You could see him shaking at the


It was videotaped.

So this precise issue of the bank

records, Mr. Klayman, which would show the location of the bank

10

account where his Social Security disability payments have been

11

deposited, you will produce those records, all the records

12

within one week.

13

MR. KLAYMAN:

14

like to produce financial information.

15

bank where it is coming into it?


THE COURT:

16

Okay.

Could I ask?

We would not

Could we just show the

Well, what I want you to do is you

17

could redact all the information on those records, other than

18

the location of the institution and the particular items

19

reflecting the direct deposit from Social Security.

20

once a month.

21

Probably

Everything else, all the checks he wrote, the

22

deposits, credits, debits, you can redact all of that.

The key

23

point here is the location of the bank and the fact that that's

24

the account receiving the Social Security disability payments.

25

So that will be done within one week.

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Now, let's go to the next subcategory.

Mr.

Klayman says, my gosh, we produced a lot of documents about

domicile, voters registration, et cetera.

pinpointed one category, one subcategory, namely the bank

account location records.

Fine.

You have now

I granted that request.

What else in the category of domicile?

MS. HANDMAN:

Well, he testified that he doesn't

have a lease.

So I have to take his word --

10
11

That he doesn't have any written understanding.

THE COURT:

He can't produce a lease if he does

not have a lease.

12

MS. HANDMAN:

We only heard yesterday of this

13

arrangement that he has with his friend, but what we do want

14

is, he did testify that he is looking for assisted living and

15

we asked who is your agent because he says he has an agent.

16

Who is your agent for that?


What steps have you taken to find assisted living?

17
18

So if he doesn't have anything to reflect the arrangement

19

currently, we would like to know what are the prospective

20

efforts being made.


THE COURT:

21

There is a problem with that request,

22

Counsel.

In effect, that sounds like more of an interrogatory.

23

Explain to me the steps that you have taken.

24

broker or the agent that you have retained in order to help you

25

find assisted living.

Identify the

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That is more of an interrogatory or a deposition

question.

Right now my understanding is we are talking about a

document request.

So I think what you are saying is produce to me

documents reflecting or relating to efforts you have made to

obtain assisted living in Miami including, for example, a

contract or a retainer agreement with an agent, or a real

estate broker, or a medical facility's consultant.

That's the kind of thing you are asking for?

10

MS. HANDMAN:

11

THE COURT:

12

Correct, Your Honor.

Okay.

Mr. Klayman, are there any such

documents?

13

MR. KLAYMAN:

14

That was never actually requested.

15

up at deposition, but I will be happy to check.

16

THE COURT:

17

Okay.

I'll check, Your Honor.


This just came

Wait just a minute.

Again, we proceed in an orderly way.

If

18

you have made a request for production that includes a request

19

for assisted living documents, then, I will certainly grant

20

what is, in effect, a de facto Motion to Compel.

21

MS. HANDMAN:

22

THE COURT:

Correct.

If this is something that came up

23

yesterday in a deposition and it is not covered by a request

24

for production, then, there is nothing that I can compel

25

because you have not made that request.

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So is there, in fact, a specific item in a request

for production that you think would cover an effort to obtain

assisted living?

Montgomery to turn it over because you haven't asked for it.

If not, I am not going to compel Mr.

MS. HANDMAN:

Well, I know we asked for a lease

and Mr. Toth is checking whether for the categories of

documents that we requested, I will say in addition, on the

phone number, they provided the phone number.

like the phone records to show us when indeed the Florida phone

10

number was obtained.

11

you are ready to move to the next topic.

And we would

It does also go -- well, I don't know if

12

THE COURT:

No, we are not ready to move.

13

Mr. Toth, have you found that particular spot in

14

the request that would include documents concerning Mr.

15

Montgomery's efforts to obtain assisted living arrangements in

16

Miami?

17

MR. TOTH:

Not yet, Your Honor.

18

MS. HANDMAN:

As I said, Your Honor, we only

19

learned about that yesterday.

20

enough, we will have to check.

21

THE COURT:

Okay.

So whether the request is broad

But I understand how things

22

have unfolded, but I really cannot compel somebody to produce

23

something and find fault with their production when you only

24

requested it informally yesterday in a deposition, or maybe

25

today is the first time you have requested it.

I don't know,

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but I cannot fault Mr. Klayman for not producing documents that

have not been requested yet.

MS. HANDMAN:

I understand, Your Honor.

And I am not suggesting fault be found.

As you

know, Your Honor, we are under this extreme deadline and just

merely the fact that this morning Mr. Klayman filed something

opposing our effort to get extended deadlines.

8
9

And says the FBI has to go through all these


documents and go through the classification process, you know,

10

it is -- and we do have a motion pending and we will,

11

obviously, bring this all to Judge Martinez' attention, but it

12

is inconsistent to say the FBI has to go through this process,

13

but by the way, you can't get an extension of September 16th.

14

THE COURT:

We are back-peddling because now you

15

are going back to the software and I don't want you to do that.

16

I have already heard all I need to hear about the software.


MS. HANDMAN:

17
18

I may.

19

THE COURT:

20

MS. HANDMAN:

21

THE COURT:

22

project yet?

23

anything?

24
25

I want to go to the tax returns, if

Not yet.
No.

So Mr. Toth, have you finished your

Because it sounds to me like you haven't found

MR. TOTH:

Your Honor, I looked through them and I

haven't seen any particular request that appears to include the

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information that --

THE COURT:

So I am not going to compel Mr.

Montgomery to turn it over because it has not been requested

yet.

Now, we talked about the next category you

mentioned was phone records for the Florida phone because you

want to see when the Florida phone account was opened, or who

opened it, et cetera.

Have you turned over those records?

10
11

MR. KLAYMAN:

I don't believe those were requested

either.

12

THE COURT:

So here is what we are going to do,

13

Miss Handman.

14

particular request of documents that you want produced, let's

15

first deal with the threshold issue of whether they have even

16

been requested.

17

From now on every time you talk to me about a

If they have not, I am not going to order Mr.

18

Montgomery to turn them over.

19

for production you have asked for these phone records to

20

reflect when the telephone number accounts were opened.

21

there such a request?

22
23
24
25

MS. HANDMAN:

So show me where in the request

I don't know, Your Honor.

Is

Probably

not in that specificity.


THE COURT:

All right.

Well, for the time being,

unless you can call my attention to a particular request later,

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I am not granting that request because it was never previously

requested.

Next category, income tax returns.

MS. HANDMAN:

Mr. Klayman correctly represented that at the

Yes.

deposition Mr. Montgomery said he did not have tax returns from

2008 through last year.

8
9

What he didn't say was the reason was that Mr.


Montgomery said he has not filed income tax returns for those

10

years claiming that this was an audit status and claiming that

11

the government seized all his records on national security

12

grounds and so he couldn't file tax returns.

13

THE COURT:

Miss Handman, let's assume that that

14

is completely false.

15

facing prosecution for failing to file tax returns, but that is

16

not before me right now.

17

returns.
We made a broader request, Your

Honor.

20

THE COURT:

21

MS. HANDMAN:

22

THE COURT:

23

Maybe he is

You have made a request for tax

MS. HANDMAN:

18
19

Maybe he has tax exposure.

Passover Seder.

My gosh.
Sorry.

You must be a heck of a person at a

Can you just refrain, please.

24

So Mr. Klayman has turned over the returns for

25

certain years and for the missing years, 2008 through 2012.

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Mr. Montgomery, as I understand it, has testified in a

deposition that he does not have any tax returns.

Because he never filed the returns.

What would you have me do?

Why?

I can't compel him to

turn over something that does not exist.

So, basically, this

should be denied because he does not have them, correct?

MS. HANDMAN:

We asked for records indicating income for the

But he asked a broader request.

years 1998, I believe it was.

And obviously, if you don't have

10

the tax returns, there are other ways of producing records that

11

reflect income.

12

THE COURT:

Show me, or tell me, or read to me the

13

particular request where you have asked for financial records

14

reflecting his income from 1998 to present.


MS. HANDMAN:

15
16

It is item number 52 in our document

request.

17

THE COURT:

Yes.

18

MS. HANDMAN:

Please produce all documents and

19

electronically stored information concerning any income,

20

salary, and benefits, and the source of that income, salary and

21

benefits you received from January 1, 1998 through the present.

22

Including, but not limited to federal and state

23

income tax returns, including, but not limited to all 1099

24

forms, W-2 forms, and schedules for tax years 2008 to 2014,

25

including, but not limited to any estimated tax submissions for

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2015, or in the alternative as to tax returns, signed releases

which would allow us to get it from the IRS.


So appropo of your bank records, for example,

3
4

those records would reflect income and that would be what if

indeed the government had seized his records as he claims, the

bank records would be, obviously, evidence of what his income

was.

MR. KLAYMAN:

THE COURT:

10

May I respond, Your Honor?

Yes.

MR. KLAYMAN:

By Miss Handman's own admission,

11

they have asked for records for 16 years.

12

relevance of that?

13

and that is a valid objection.

14

So we object to overbreadth and harassment

THE COURT:

Miss Handman, why are you entitled to

15

records dating all the way back to 1998?

16

the alleged defamation?

17
18
19

What is the

MS. HANDMAN:

What was the year of

The defamation was in 2014, but it

related to companies that he joined in 1998.


I think, if I am not mistaken, we may have in the

20

meet and confer agreed to limited and I am prepared to limit it

21

now, but that is the reason for the 1998 date.

22

date begins in 2003, which is when he starts offering his

23

software to the government.

24

book, but it was through a company called Intrepid, which was

25

founded in 1998.

But the key

And that is the subject of the

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2

MR. KLAYMAN:

Miss Handman is backtracking right

now to make this look like a legitimate request and it is not.


It is harassment, Your Honor, and we objected

3
4

legitimately to it.

don't know of any case that you have to produce your financial

records for 16 years when the defamation took place in 2014.

16 years is more than unreasonable.

THE COURT:

All right.

So on this particular

request, which is request number 52, I am going to require Mr.

Montgomery to produce all responsive documents for the years

10

2003 to date and I will give you two weeks to do that.

11

Now, I understand Mr. Klayman that Mr. Montgomery

12

is taking the position that the government seized his records.

13

However, unless --

14

Strike that.

15

However, there may be other documents that are

16

within his custody or control in which he could obtain, such as

17

bank records from 2003 to date, such as if he received any 1099

18

forms or W-2 forms.


He may have received those sorts of tax documents,

19
20

regardless of whether he filed an income tax return or not.

21

Any kind of a K-2 distribution statement, if there are any such

22

statements.

23

to date and those will be produced within two weeks.

Other records reflecting revenue income from 2003

24

What is your next category, Miss Handman?

25

MS. HANDMAN:

Medical records, Your Honor.

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We asked for medical records.

MR. KLAYMAN:

Could we stay on this topic for a

second?

THE COURT:

MR. KLAYMAN:

records, Your Honor.

time.

Medical records?
No, the issue of the financial

I may ask a vacation period during this

May we have ten days to produce?

THE COURT:

MR. KLAYMAN:

10

I believe for --

Well, I actually said two weeks.


Two weeks.

I'm sorry.

I didn't

hear you.

11

THE COURT:

Longer than ten days.

12

MR. KLAYMAN:

13

Okay.

No, no, that's fine.

One thing I will point out, this is the

14

misrepresentations that were made and it is very hard to

15

address it because Miss Handman is, like, pulling rabbits out

16

of a hat, but we did produce all of our tax returns from 2003

17

to 2008.

18

THE COURT:

19

I am not asking you to reproduce the tax returns.

20

I am talking about other documents; bank records, W-2s, 1099s,

21

distribution statements, partnership records.

22

I'm talking about.

25

You know what

Financial --

MR. KLAYMAN:

23
24

I understand.

And if he has them we will in two

weeks.
THE COURT:

If he has them you have to turn them

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over and if he does not have them, then, you cannot turn them

over.

I mean, that's --

MR. KLAYMAN:

I understand.

THE COURT:

-- reality.

All right.

Medical records.

MS. HANDMAN:

We asked for item 33 on our document request for

Yes, Your Honor.

all medical, psychiatric, psychological and prescription

records pertaining to your health issues referred in Paragraph

10

13 of the amended complaint.

11

And that is overall a claim that his medical

12

condition now where he had aneurism in -- well, it's unclear if

13

it's 2010 or 2011 and I'll get to that point.

14

stroke in the court following aneurism surgery in May of 2014

15

that somehow in our book in October of 2014 is responsible for

16

all of the consequences from that, including 11 million dollars

17

in medical expenses and past and future and all the work that

18

he is missing as a result of this.


THE COURT:

19
20

23

What is that particular paragraph

number in the amended complaint that this relates to?


MS. HANDMAN:

21
22

And then, a

It's Paragraph 13 of the amended

complaint.
THE COURT:

All right.

And that's the one where

24

he alleges these medical consequences?

25

MS. HANDMAN:

Right.

And he says it as much also

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 7069
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in the answers to interrogatories and he said it as much

yesterday as well that he is claiming that we're responsible

for that.

So Mr. Klayman took the position that we were only

entitled to records from 2011 forward and we have not gotten

any records post April, mid-April.

was a doctor's note, basically, saying he is sick.

8
9

And the only record we got

And we haven't gotten anything since then and we


didn't get anything pre -- I believe the fall of 2011.

Even

10

though the records that were produced indicated that the

11

aneurism was first diagnosed in 2010 and two doctors said that

12

in the records that were produced.

13

So obviously, aneurisms have a history.

And he

14

did not say that he had headaches before the aneurism, et

15

cetera, and we think that we are entitled to a full accounting

16

of all the records that he has that relate to his claim that

17

we're responsible for his health.

18

THE COURT:

Just so I am clear, Mr. Montgomery,

19

through Mr. Klayman has produced medical records, but you say

20

it is not complete.

21

are, number one, anything after April of this year and before

22

the fall of 2011.

23
24
25

And the categories that you are missing

That is what you are missing on the very tail end


and, then, going back several years.
Mr. Klayman, your position?

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MR. KLAYMAN:

It is my understanding, Your Honor,

we will go back and check that we did produce everything,

everything that he has in his possession.

hide in this regard.

We have nothing to

I mean, it is to our advantage to produce it, but

you know, this again in my view, is a tactic at the earlier

hearing where Judge Martinez, she mocked his health with regard

to a brain aneurism.

sister had it.

10

make fun of it.

11

frankly.

12

And Judge Martinez says, I think my

So it is really severe, Miss Handman, so don't


I think that is what got the early trial date,

And then, yesterday when my client said he is

13

feeling bad and wants to take a break, she says to him, well,

14

that's what you get for filing this lawsuit.

15
16
17

See, this is a tactic.

We want to provide all of

that stuff and there is nothing to hide in that regard.


THE COURT:

Are there any recent medical records,

18

Mr. Klayman, from April of this year going forward to the

19

present that you have not turned over?

20

MR. KLAYMAN:

21

THE COURT:

I will go back and check.

So I am not going to require them to

22

go way back to 2010.

23

all medical records that have not yet been produced from April

24

2014 to the present and that will be within two weeks.

25

I will require Mr. Montgomery to produce

MS. HANDMAN:

And if I might just address one

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point.

We had offered to do the deposition in Seattle.

attempted to accommodate Mr. Montgomery in every way.

was only that he -- this is a lawsuit he chose to bring.

Therefore, he did sit for a deposition.

it wasn't difficult and I did not mock, in any way, his

condition at any time.

THE COURT:

We

My point

I do not disagree that

This is really not a critical issue

for me and I am not going to spend -- by the way, was this a

videotaped deposition?

10

MS. HANDMAN:

11

THE COURT:

Yes, it was.

I am not going to take the time

12

reviewing a videotaped deposition to see one way or another

13

whether or not Miss Handman mocked Mr. Montgomery.

14

My ruling is not based on whether that did or did

15

not occur.

But by the way, just for my own background, Mr.

16

Klayman, did the Defense offer to take Mr. Montgomery's

17

deposition in Washington where he lives?


MR. KLAYMAN:

Washington, D.C. or Miami.

20

MS. HANDMAN:

Not Seattle.

21

MR. KLAYMAN:

All three and we chose Miami.

22

THE COURT:

23

MR. KLAYMAN:

24

THE COURT:

25

MR. KLAYMAN:

18
19

We chose

Miami.

Okay.
For a lot of different reasons.

That's up to you and your client.


He traveled here at his expense.

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And you know, one of the things that is evident here, you know,

is that this is going to be a contentious case and we

understand that.

We are the Plaintiff.

THE COURT:

Okay.

MR. KLAYMAN:

Yeah, but I have a long history with

Miss Handman and she has a long history with me.

you know, they've got a former FBI agent trailing every one on

this case and that is how contentious it is.

contentious it is.

10
11

THE COURT:

That is how

tailing you?
MR. KLAYMAN:

13

I don't care.

15

And

Are you suggesting that they are

12

14

Okay.

about my history.

They probably are.


Your daughter may know a little bit

I don't know.

MS. HANDMAN:

It doesn't matter.

I do know that Mr. Klayman had a

16

process server come to my home at 10:30 at night to subpoena my

17

husband in a case that he has brought against the Clintons in

18

the Southern District of Florida.

19

And ultimately, Judge Middlebrooks threw out the

20

case and stayed the discovery until he had done so and the

21

issue never came to a head, but --

22
23

THE COURT:

Folks, listen, I am sure you both have

a lot of colorful anecdotes about each other going --

24

MR. KLAYMAN:

25

THE COURT:

It's amusing, Your Honor --

It is not amusing.

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MR. KLAYMAN:

I understand.

Her husband is Ickes, the closest person to

Hillary Clinton in the United States and I have a long history

with Mr. Ickes, too, on the level of Cheryl Mills and Huma -- I

can't pronounce it -- involved in the e-mail scandal.

THE COURT:

Let's get back to this particular

discovery case.

alleged Hillary Clinton e-mail scandal.

that is quite on point.

10

I am really not prepared to go into the


I do not really think

So are there any other categories of documents

11

that you are seeking?

We have already covered medical records.

12

We have covered phone records.

13

regarding his domicile.

14

returns.

We have covered documents

We have talked about income tax

We talked about phone records.

15

What other category?

16

MS. HANDMAN:

Your Honor, there are no other

17

categories.

What we are seeking -- well, I should say the one

18

other category that is very, very critical is the government

19

tests that Mr. Montgomery references that validated his

20

software.

21

THE COURT:

Yes.

22

MS. HANDMAN:

23

THE COURT:

24

MS. HANDMAN:

25

THE COURT:

And --

Was that requested?


Yes.

Tell me what number.

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MS. HANDMAN:

And one other thing which was the

location of the software, which I guess now we know is in the

hands of the FBI, but whether it is available at other

locations we don't know.

5
6

THE COURT:

I saw Mr. Toth circle some things.

don't know if he found something.

MR. TOTH:

THE COURT:

MR. TOTH:

I think it is request number 9.


What does number 9 say?
Please produce copies of the, quote,

10

government's own test of Plaintiff Montgomery's software or

11

your company's software that, quote, confirmed its

12

effectiveness and reliability, end quote.

13

Paragraph 48 of the amended complaint identified in response to

14

interrogatory 10 above.

15

THE COURT:

16

turned over those tests and reports?


MR. KLAYMAN:

17
18

All right.

Referred to

So Mr. Klayman, have you

It is my understanding we have, but

we will check, Your Honor.


THE COURT:

19

Well, I don't know if you noticed it,

20

but while you were saying that, Miss Handman was vigorously

21

shaking her head, no, which I interpret it to mean that, no,

22

you have not.

23

MR. KLAYMAN:

24

THE COURT:

25

drives me crazy, folks.

Well, I disagree.

See, this is the kind of thing that


It happens very frequently.

One party

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will say, yes, we turned it over and another party says we did

not.
Is your paralegal a little more familiar with the

3
4

specific documents that were turned over than you are?

Typically, in a big case as the lead lawyer may

not have complete familiarity with each and every document and

the paralegals are a little bit more enmeshed in the nuances.

8
9

MR. KLAYMAN:
lawyers.

They are generally sharper than the

In this case that's true.

10

THE COURT:

And all of my paralegals over the

11

years were way smarter than me.

12

another handle, ma'am, on whether these tests and reports were

13

turned over?

14

MS. JAMES:

And if you could give me

I believe -- I was in receipt of one

15

document, a one-page document that I believe was turned over.

16

If it wasn't turned over, we will be happy to turn it over.

17

THE COURT:

18

that you have is a one-page document?

19

MS. JAMES:

In my possession.

20

THE COURT:

How about in Mr. Montgomery's

MS. JAMES:

Mr. Montgomery has told me that he

21

But that's the only test and report

That is correct.

possession?

22
23

provided everything to us that he had, as far as the test

24

validating.

25

THE COURT:

All right.

So what I am going to ask

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you to do because they, basically, told us now on the record

that they've made a representation to a federal magistrate

judge that they have turned over all of the tests and reports

and the software that are in Mr. Montgomery's possession.

that consists of a one-page document, which was already turned

over.

And

So within a week, I would like you to advise

Defense counsel with the particular Bates number of the

documents that you turned over, this one-page test or report.

10

Then, you do not have anything else.

11

of a stone.

12

So I cannot get blood out

And whether you believe Mr. Montgomery, Miss

13

Handman, or not, there are certain other steps that you can

14

take, including, you know, cross-examination at trial and maybe

15

the jury will find it preposterous that he does not have these

16

government reports and tests.

17

he does not have them.

18

about.

Maybe they will understand that

Who knows?

That is what trials are all

So in any event, you will have that homework

19
20

assignment to get the Bates numbers.

What did I say, one week?

21

MS. JAMES:

Yes.

22

THE COURT:

One week to designate and advise the

23

Defense of the one-page report or test that was already turned

24

over.

25

if it turns out that, whoops, you made a mistake and you did

And if it turns out -- when you go through your records

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not actually turn over that one-page report, even though in

good faith you thought that you did, then, obviously turn it

over within that one week, okay.

4
5

MR. TOTH:
point?

THE COURT:

MR. TOTH:

Your Honor, may I just make one small

Yes.
Our request number 7 is well, I think

was also on point.

It is, please produce all documents and

10

electronically stored information pertaining to all persons

11

with knowledge of your, or your company's software, or the

12

location of your software identified in response interrogatory

13

number 9 above.

14

I just think that's important because, especially

15

in terms of turning over the software and documents and

16

communications reflecting that, that would also, I believe, be

17

accomplished in that interrogatory.

18

THE COURT:

19

MR. TOTH:

20

THE COURT:

21

Excuse me.

Request for production.

Would you read that to me one more

time and just tell me the number again.


MR. TOTH:

22
23

Mr. Klayman --

It's number 7, request for production

number 7.

24

THE COURT:

25

MR. TOTH:

Read it slowly, please.


Please produce all documents and

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electronically stored information pertaining to all persons

with knowledge of your, or your company's software, or the

location of your software identified in response to

interrogatory 9 above.

MR. KLAYMAN:

Well, first of all, that would

include hundreds of people and to the best of Mr. Montgomery's

knowledge, he did advise --

8
9

THE COURT:
interrogatory.

Just keep in mind, this is not an

It is a request for production?

10

MR. TOTH:

11

THE COURT:

Right.
So if you have a document showing the

12

identity of a witness who would know the location of the

13

software, then, you should turn it over.

14

But I think what Mr. Toth is sort of suggesting is

15

almost akin to a narrative interrogatory answer, which is

16

really not appropriate when we are talking about a document

17

request.

18
19
20
21
22

So a document request and not an interrogatory.


So have you turned over documents, which would be

responsive to request number 7?


MR. KLAYMAN:

Our understanding is that we did,

Your Honor, but we will certainly go back and check.


THE COURT:

So for example, if this request number

23

7 says, produce all documents reflecting the identity of all

24

persons who know the location of the software, then, arguably

25

if you had a letter to or from Miss Curtis, the assistant U.S.

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attorney, discussing the procedures for turning over the

software, then, that would be a responsive document.

If you had a communication between you and an FBI

general counsel concerning the methodology and procedure for

turning over the software, then, that document would need to be

produced because that person would be a person who has

knowledge of the current location of the software.

So I know that maybe you think you may have

produced all the documents, but now that I have flagged this

10

issue for you, maybe you realize that you have not quite yet

11

turned over all the documents.

12

assumption is wrong and you have turned over those documents

13

concerning the disclosure to the FBI.

Unless I am wrong, my

14

Have you turned over those documents?

15

MR. KLAYMAN:

16
17

No, Your Honor.

That occurred after

the document production.


THE COURT:

All right.

So your paralegal,

18

probably your paralegal will be carrying the labeling over

19

there to track those down and turn them over to the Defense

20

within ten days, okay.

21

So let me also just circle back to the category,

22

or the topic that consumed the lion's share of the deposition,

23

which is the actual software.

24

So I am, in fact, Mr. Klayman, going to order Mr.

25

Montgomery to turn over that software and to take advantage of

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his right of continued access to nonclassified information.

I understand that you may have a certain position

and you may make that position known, but right now that is

going to be my order and you will do what you see fit under the

circumstances.

6
7

MR. KLAYMAN:
Honor?

What if the FBI determines that it is classified?

8
9

What if it is classified, Your

THE COURT:

Then, we are in completely different

situations, but as far as I know, that has not happened yet.

10

Listen, you will file in response whatever you deem

11

appropriate.

12

I am aware of the history.

I think we are all

13

aware of the practical difficulties in quickly obtaining the

14

software, given the fact that Mr. Montgomery did not keep a

15

copy, but for the time being, I am going to enter that order

16

for whatever it is worth.

17

under the circumstances.

18

That is about the best that I can do

And if the Defendants later want to file a

19

different motion, I think Miss Handman was talking about

20

dismissing the case, and entering a default, an adverse

21

inference arising from this decision to turn over the software

22

without keeping a copy and without timely advising them, that

23

is a different issue for a different day.

24
25

Right now we are just here on a discovery dispute.


And my ruling on the software is even though I recognize that

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Mr. Montgomery no longer has it, I am going to order him to

turn it over because discovery requests are not only what is in

your current possession, but in your custody or control.

And you already told me that Mr. Montgomery has

continued access to nonclassified information.

So he can use

that as a potential hook or springboard to try to get that

information.

MR. KLAYMAN:

That's fine, Your Honor.

We anticipated that and we are respectful of this

10

Court and all processes of this Court and I respect Your

11

Honor's decision here.

12

I would disagree with it, not because of you, but

13

if it does turn out to be classified that it would, in effect,

14

cause a crime to turn it over.

15

THE COURT:

I understand.

16

I am not making any further rulings now than what

17

I have made today.

18

appropriate and I already have a pretty good idea of what your

19

position is going to be.

20

this hearing.

21

And so you will do what you deem to be

We already spoke about that during

MR. KLAYMAN:

And assuming, however it comes out

22

in the end with regard to the software or not, their intention

23

is to give it to an expert.

24

precautions taken in that regard with regard to that expert.

25

And of course, we need an expert, too, at that point.

So there would have to be special

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THE COURT:

Understood.

MR. KLAYMAN:

Now, I have a motion pending, too,

and I realize it is past 5:00 and Your Honor is not feeling

well.

THE COURT:

Folks, here is what we are going to

do.

We are going to take a five-minute break.

care of something and, then, we will be back in five minutes

and we will deal with your issue, okay.

(Recess.)

10

THE COURT:

11

ruling on the software.

12

I need to take

So one other thing concerning the

Mr. Klayman, by next Wednesday, you are going to

13

be writing a letter to the FBI attorney who is involved in this

14

situation.

15

going to advise the FBI general counsel, or any other

16

appropriate FBI attorney involved that I have ordered you --

17

that I have ordered Mr. Montgomery -- to turn over the

18

software.

19

I think you mentioned general counsel.

And you are

And that I am directing Mr. Montgomery to use his

20

right of continued access to nonclassified information in order

21

to obtain the software or a copy of it.

22

counsel on that letter and you will file that letter with the

23

Court under a notice of filing and you will do that by next

24

Wednesday, please.

25

MR. KLAYMAN:

You will copy Defense

Yes, Your Honor.

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2

THE COURT:

And we will get to your particular

discovery dispute.
MR. KLAYMAN:

Your Honor, I did send to you last

night, and we copied the other side, a redacted e-mail that was

produced --

THE COURT:

MR. KLAYMAN:

THE COURT:

9
10

here.

Right.

Yes.

I got that.

Let me pull that out

It says at the top, redacted attorney/client

work product from Eric Lichtblau.

11

MR. KLAYMAN:

12

THE COURT:

13

-- by the Defendants.

That's Risen's partner.

Meaning, his business partner or his

partner in --

14

MR. KLAYMAN:

Well, you never know.

15

MS. HANDMAN:

He is a New York Times reporter who

16

co-authored it.
MR. KLAYMAN:

17
18

Unless you don't live in West

Hollywood you might not know.


Okay.

19

But in any event, Eric Lichtblau is a

20

reporter is also a national security reporter that works with

21

Mr. Risen at the New York Times.

I know him myself.

And this e-mail, subject, con man to James Risen

22
23

says:

I got some terrific stuff today.

Spent eight plus hours

24

with the source and left with a thumb drive with 20,000 pages

25

of documents.

I have a much better grasp of the whole story

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 8584
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line and characters.

Hayden and Negroponte were directly

involved, in addition to Cheney aides, plus major involvement

by Kemp, Clinton wing man Burkle, Navy sec, Conrad Burns and

others.

Flying back tomorrow -- Eric Lichtblau.

And what they're talking about here are documents

that were obtained from Mr. Montgomery's former lawyer, Michael

Flynn, 20,000 documents.

I took --

THE COURT:

10

I'm sorry.

Let me make this clear.

So you are telling me

11

that the source mentioned in this e-mail is Michael Flynn, Mr.

12

Montgomery's former lawyer?

13

MR. KLAYMAN:

Correct.

14

And they have had a contentious relationship.

15

Flynn, according to Mr. Montgomery, overbilled him

16

significantly.

17

difficulty.

18

to destroy Mr. Montgomery financially and otherwise.

Mr.

He couldn't pay and fell into financial

Mr. Flynn became hostile and, essentially, tried

We had requested these 20,000 pages of documents.

19
20

Some were produced with the initial disclosures of the

21

Defendants, but we followed it up with a request for production

22

for all of them.


At the deposition of Mr. Risen, I asked him about

23
24

the 20,000 documents.

25

he had them.

And initially, he seemed to confirm that

And then, to make a long story short, Miss

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Handman jumped in with speaking objections and suggested that

there weren't 20,000 documents.

Risen if he reviewed the 20,000 documents before they were

turned over --

MS. HANDMAN:

THE COURT:

MS. HANDMAN:

THE COURT:

And then, when I asked Mr.

20,000 pages, just to be accurate.

Ma'am -I'm sorry.

The rule, in pretty much every court

in the land, as far as I know, it is the no interrupting rule.

10

It is the same rule that you learn in kindergarten.

11

do not interrupt.

12

Klayman is finished and, then, you may respond.

If you have something to say, wait until Mr.

13

Understood?

14

MS. HANDMAN:

Yes.

15

MR. KLAYMAN:

20,000 pages.

16

So please

Okay.

I said

documents -- pages -- that's what I meant.


Anyway, Miss Handman wouldn't let him answer

17
18

questions as to whether he had turned all these 20,000 pages

19

over to her and whether they were produced or would be

20

produced.

21

In any event, we later served a request for

22

production and we only got a handful of documents of the 20,000

23

pages out of that production.

24

those documents.

25

THE COURT:

Mr. Montgomery is entitled to

When you say you received a handful,

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literally, that would mean five or less, five pages out of

20,000.

20,000?

So how many pages did you actually get out of the

MR. KLAYMAN:

Yes.

Of the 20,000 I'm going to go

back and check the exact page numbers, but we only got a subset

of those documents.

production, but we did get some with the initial disclosures.

We are still going through the last

THE COURT:

Yes.

MR. KLAYMAN:

Okay.

And they were about 4,400

10

documents all totaled, not just the Risen documents, but other

11

documents.

12

THE COURT:

13

MR. KLAYMAN:

14

Pages, okay.

All right.
Not just the Flynn documents.

20,000 pages --

15

THE COURT:

16

MR. KLAYMAN:

Right.
-- are at issue here, but we only

17

got 4,400 documents at the initial disclosures and many of

18

those were not Flynn related documents.

19

Okay.

Okay.

Now, we served another request to produce.

20

And I had my associate go through those documents this morning

21

that were produced and there were only a handful of documents,

22

five to ten, that were produced from at least 20,000 pages.

23

Now, I would like Your Honor to order them to

24

produce all of the 20,000 pages of documents because they are

25

Mr. Montgomery's documents .

They are attorney/client

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privilege and they are work product.

what Flynn turned over to Risen.

He is entitled to see

I think Mr. Flynn has committed a major ethical

3
4

violation here in doing that, but that's besides the point.

is entitled to the documents so we can see if there is anything

discoverable in there that is usable.

retaliation for Mr. Montgomery not being able to pay him,

started to collaborate with Risen and has called my client a

fraud.

10

He

Because Mr. Flynn, in

I don't know how a lawyer can call a former client

11

a fraud and, frankly, not be disbarred.

12

you can turn over 20,000 pages of documents which contain

13

attorney/client work product to a reporter.

14

And I don't know how

This also bears on Mr. Risen's ethics and

15

credibility that he would induce Mr. Flynn to violate his oath

16

as an attorney.

17

20,000 pages be turned over and produced.

So what I am asking for is that all of those

MS. HANDMAN:

18

Your Honor, for all the documents

19

that Mr. Risen has ever received from Mr. Flynn have been

20

produced.

21

The initial disclosures included many of the

22

documents that Mr. Flynn provided.

23

initial disclosures just ask what you are planning to rely on.

24
25

And if you recall, the

Most of what Mr. Risen had were court records that


Mr. Flynn has.

There has been endless litigation among these

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various people and a lot of it was court records.

shows up in our fair report by our arguments on the Motion to

Dismiss.

Much of it

Mr. Risen was indeed deposed on June 19th.

There

had not been any document requests at that time.

He testified

at length on this subject and said he didn't believe there were

20,000 pages.

published in February of 2011 in the New York Times that

Lichtblau downloaded some of the documents, the ones he thought

That this was for their article that was

10

interesting and gave those to Mr. Risen.

11

most of them were court records and that was his testimony.

12

Mr. Risen thought

Then, Mr. Klayman issued a document request for

13

all documents that Mr. Risen had received from Mr. Flynn.

14

we, therefore, produced whatever was supplemental to that on

15

August 10th.

16

sometimes people say they don't have things and you have to

17

believe them, that is the case.

18

Risen had from Mr. Flynn.

19

So

And I, honestly, just as you said to me that

THE COURT:

We have produced what Mr.

Mr. Risen, as I understand it, didn't

20

get it directly from Mr. Flynn.

He got them from Mr. Lichtblau

21

who, in turn, got them from Mr. Flynn.

22

MS. HANDMAN:

23

And then, Mr. Risen, in the course of preparing

These, in this set, yes.

24

his book had some dealings with Mr. Flynn.

And I believe he

25

provided additional information at that time, just as he had

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 9089
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dealings with Mr. Montgomery and incorporated that information

in his book.

So in preparing his book, he obviously amassed

some additional material beyond what he had gotten from Mr.

Lichtblau.

e-mail this was written on the fly on the way back from

California where Mr. Risen believed that was where Mr. Flynn

was.

But this specific thing, it is obvious from this

And there was, you know, maybe Mr. Flynn told him

10

there was 20,000 pages.

Who knows?

11

documents.

12

know numbers.

13

absolutely a fishing expedition.

We produced them.

And you said you didn't want to

So I won't give you numbers, but this is

14

MR. KLAYMAN:

15

THE COURT:

16

MR. KLAYMAN:

17

There were a lot of

We produced what we had.

Your Honor, may I respond?

Sure.
What we just heard was testimony by

Miss Handman and not the testimony of Mr. Risen.


Okay.

18

That was the problem at the deposition.

19

She kept interrupting.

It was clear that the 20,000 pages had

20

been turned over to her and we only got a few out of the 4,400

21

that were produced in initial disclosures.


Then, we served a Motion to Compel for all of

22
23

them.

Mr. Montgomery is entitled to all of them.

Mr. Risen's

24

book attributes Mr. Lichtblau in helping him write the book.

25

They are two top national security reporters for the New York

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Times.

So they are within Mr. Risen's custody,

possession, and control because Mr. Lichtblau participated with

him in writing the book.

on the fly.

a thumb drive.

over to Lichtblau on the thumb drive.

THE COURT:

9
10
11

And you can see, this was not written

This is unequivocal.

20,000 pages of documents on

So all we want is everything that Flynn turned

So you have, Miss Handman, all the

documents that Mr. Flynn turned over to Lichtblau, or you have


only the subset that Mr. Lichtblau turned over to Mr. Risen?
MS. HANDMAN:

I believe Mr. Lichtblau has given us

12

his documents and I know that Mr. Risen has given us all the

13

documents that he got from Mr. Flynn.

14

And let me just say, Mr. Lichtblau did not

15

co-author this book.

This book is written by Mr. Risen.

Mr.

16

Risen asked him to look over the book to see if he had any, you

17

know, corrections, or editorials, whatever, but he did not

18

write the book.

Mr. Risen wrote the book.

19

MR. KLAYMAN:

20

THE COURT:

21

MS. HANDMAN:

22

THE COURT:

That's -- I'm sorry, Your Honor.

So for example -And that is Mr. Risen's testimony.

So this e-mail represents, or I should

23

say, references a thumb drive with 20,000 pages of documents.

24

Now, whether or not it was written on the fly or

25

not, whether or not it was 8,000, or 14,000, or 27,000, right

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now my question is, do you have that thumb drive?

2
3

MS. HANDMAN:
Risen.

THE COURT:

MS. HANDMAN:

No, we do not and neither does Mr.

Where is the thumb drive?


Mr. Lichtblau doesn't know where it

is.

THE COURT:

So Mr. Lichtblau doesn't --

MS. HANDMAN:

THE COURT:

They're not with Mr. Risen.

Mr. Lichtblau doesn't know and Mr.

10

Risen doesn't know and --

11

MS. HANDMAN:

Mr. Risen never had it.

12

believe he ever had the thumb drive.

13

THE COURT:

He doesn't

Well, regardless of whether he had it

14

or didn't have the thumb drive, he might have some idea of

15

where it is.

16

MS. HANDMAN:

17

THE COURT:

18

the thumb drive is.

19

drive is.

20

drive is, correct?

He doesn't.

So Mr. Lichtblau doesn't know where

Mr. Risen doesn't know where the thumb

You and your legal team doesn't know where the thumb

21

MS. HANDMAN:

Correct.

22

We've never had it and Mr. Risen has never had it,

23

according to his testimony.

And Mr. Lichtblau had it at one

24

point, but he doesn't.

25

is that Mr. Lichtblau downloaded the documents that he thought

As I said, the testimony of Mr. Risen

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were relevant.

THE COURT:

Okay.

So in this situation you're

claiming the Defendant, Mr. Risen and his counsel, have said

unequivocally on the record to a Federal Magistrate Judge, we

have turned over all the documents.

So I have to accept that at face value, just like

I accepted at face value your statements of certain categories

that you turned over all the documents.

If it turns out that Miss Handman is incorrect and

10

that all the documents have been turned over, believe me you --

11

believe you me is the right phrase -- believe you me, there

12

will be plenty of other potential consequences that will arise

13

from that scenario, but right now I do not have any alternative

14

but to accept the representation at face value.


Apparently a significant number of these documents

15
16

on the thumb drive were not classified, or confidential, or

17

attorney/client work product, but instead were simply copies of

18

documents filed in various courts.

19

documents, but whether they were public or attorney/client, or

20

work product or not, the Defense says you have them all.
MR. KLAYMAN:

21

So they are public

Your Honor, the problem with that is

22

that the recitation of Mr. Risen's testimony that she just gave

23

was false.

24

thumb drive.

25

Mr. Risen did not testify that he didn't have the

THE COURT:

What did he say?

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MR. KLAYMAN:

I didn't get that far because I got

cut off from the questioning.

So I will submit to you the

transcript of that and show you what was said and just now was

not the case.

And what I would ask this Court to order is that

they do turn -- they be ordered to turn over the thumb drive,

just like Mr. Montgomery is being ordered to turn over the

software.

justify what was said because I was cut off at deposition with

Same thing.

Turn it over and let them come back and

10

speaking objections and trying to coach the witness into not

11

answering the question.

12

THE COURT:

Well, the order requiring Mr.

13

Montgomery to turn over the software is because Mr. Montgomery

14

was in possession of the software.

15

to me that Mr. Risen has never been in possession of the thumb

16

drive.

17

is not quite analogous.

And counsel has indicated

So it is a little bit of a different situation and it

MR. KLAYMAN:

18

Could I have an order, then, that he

19

is ordered to answer the question as to whether he has ever

20

been in possession of the thumb drive and where it is because I

21

couldn't get to that at the deposition.

22

testified to she just made up.


THE COURT:

23

What she just

So I am a little bit curious about

24

that because, Mr. Klayman, you do not strike me as a shrieking

25

violent guy.

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MR. KLAYMAN:

THE COURT:

I'm not.

So if you are at a deposition and you

are trying to find out from Mr. Risen if he ever had the thumb

drive -- and I was not there.

So I don't know if Miss Handman was being

obstreperous or not.

but the point is, even if she was, I cannot believe that an

attorney with your level of experience would simply move on and

not followup with the specific question.

10
11

I don't know if she was coaching or not,

MR. KLAYMAN:

I moved on with the witness request

and I don't see where it came out.

12

THE COURT:

All right.

So here is what we are

13

going to do because I just do not have time to review an entire

14

deposition transcript.

15

which will not require a significant amount of effort by

16

anyone.

And the summation is going to be one

So Miss Handman, by next Friday, you will submit

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either an affidavit or a declaration from Mr. Risen stating,

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unequivocally, one way or the other, whether he was ever in

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possession of the thumb drive mentioned in Mr. Lichtblau's

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e-mail.

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it, if he knows the current location.

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And regardless of whether he was ever in possession of

MR. KLAYMAN:

And we were joking about Hillary

Clinton before, but it sounds similar, doesn't it?


THE COURT:

I really cannot respond to that sort

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of comment.

So I am going to refrain.

MR. KLAYMAN:

THE COURT:

Do you have any other issues to raise

for me, Mr. Klayman, that you have noticed for today?

MR. KLAYMAN:

THE COURT:

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All right.

So bear with me just a

By the way, what is the status?


not checked the entire docket sheet.
motion to stay?

Because I have

What is the status on the

Was there ever a ruling on that?

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MS. HANDMAN:

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THE COURT:

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No, this is it, Your Honor.

minute.

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Sometimes two and two equals four.

No, there was not, Your Honor.

Was there ever a ruling or not yet a

ruling on a Motion to Dismiss?

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MS. HANDMAN:

Correct.

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MR. KLAYMAN:

No.

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MS. HANDMAN:

The motion to transfer, correct.

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THE COURT:

All right.

Folks, so thanks for your

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participation today.

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notes on the rulings, but in any event, I am going to be

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issuing -- folks, sit down, please, and make yourselves

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comfortable.

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you do not need to stand up.

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I think everyone has taken pretty good

Especially it's a Friday afternoon at 5:45.

So

My point was probably by Monday we will issue a

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written administrative order just summarizing the ruling.

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you will have it on the record and it will be uploaded on

So

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CM/CEF.

Normally in a discovery dispute, I follow the

dictates of Rule 37, which requires an award of attorney's fees

to the prevailing party, unless the losing party has provided

substantial justification for its position, or other

circumstances making an award unjust.

The rule also says that if there are rulings that

go both ways, you can basically either subtract, or add, or

equal it out to be a draw.

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So in this particular case, each

side won some, you lost some, and basically, it's a draw.

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So I am not going to be awarding attorney's fees

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to either side.

I am sort of tempted to suggest to you all to

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try to relax a little bit and keep the level of vitriol down,

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but I don't know if that is really going to do that much good.

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I have a couple of cases other than this one that

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are pretty hotly contested.

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number of occasions and it has done absolutely no good

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whatsoever.

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And I made that request on a

So I am sure you folks will continue litigating at

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whatever level of passion and energy that you have been

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preceding under ever since the lawsuit was filed.

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All right.

Folks, anything else from either side

today concerning this discovery, series of disputes?


MR. KLAYMAN:
operation, Your Honor.

Only that we wish you well with your

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THE COURT:

MR. KLAYMAN:

THE COURT:

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Thank you.

I appreciate that so much.

I didn't bring my dog today.

Hopefully I will be back on my feet

here on the bench dispensing justice sooner, rather than later.


So safe travels back to New York and safe travels
back to Brickell.
(Thereupon, the proceedings concluded.)

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CERTIFICATE

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I hereby certify that the foregoing transcript is

an accurate transcript of the audio recorded proceedings in the

above-entitled matter.

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08/24/15
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Bonnie Joy Lewis,


Registered Professional Reporter
CASE LAW REPORTING, INC.
7001 Southwest 13 Street,
Pembroke Pines, Florida 33023
954-985-8875