You are on page 1of 119

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 1 of 27

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-20782-MARTINEZ/GOODMAN
DENNIS MONTGOMERY,
Plaintiff,
v.
JAMES RISEN et al.,
Defendants.
________________________/

DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF


THEIR MOTION FOR SANCTIONS

HOLLAND & KNIGHT LLP


Sanford L. Bohrer
Sandy.Bohrer@hklaw.com
Brian W. Toth
Brian.Toth@hklaw.com
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Tel: (305) 374-8500
Fax: (305) 789-7799

DAVIS WRIGHT TREMAINE LLP


Laura R. Handman (admitted pro hac vice)
laurahandman@dwt.com
Micah J. Ratner (admitted pro hac vice)
micahratner@dwt.com
1919 Pennsylvania Ave., NW, Suite 800
Washington, D.C. 20006
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 2 of 27

TABLE OF CONTENTS
I.

PRELIMINARY STATEMENT ..............................................................................................1

II. FACTUAL BACKGROUND...................................................................................................2


A. Defendants June 1 Request for the Location of the Relevant Software
and its Production, and Montgomerys July 1 and 15 Refusals to
Comply............................................................................................................................3
B. Defendants Show Montgomerys Past Cases Find the Software Is Not
Classified and His Pattern of Refusing to Produce the Software....................................3
C. Montgomery Testifies in His August 20 Deposition that He Gave the
Software to the FBI and Did Not Keep a Copy ..............................................................4
D. Montgomerys Counsel Represents to the Court in the August 21
Hearing that Montgomery Gave the FBI the Only Copy of the Software
Days Before ....................................................................................................................5
E. The August 22 Order to Produce the Software and Obtain It from the
FBI ..................................................................................................................................6
F. Montgomery Fails to Comply with the August 31 Deadline ..........................................6
G. The September 3 Denial of Montgomerys Motion to Stay the Order to
Produce the Software ......................................................................................................6
H. Montgomery Fails to Produce the Software by the September 4
Deadline ..........................................................................................................................7
I. The September 8 Revelation of Montgomerys Document Dump on the
FBI ..................................................................................................................................8
J. The October 16 and 19 Orders Again Requiring Montgomery to
Produce the Software and to Provide the FBI Detailed Instructions to
Find It ..............................................................................................................................9
K. Montgomerys October 21 Declaration Now Swearing that He Did Not
Have Access to His Own Software and Did Not Give It to the FBI ...............................9
L. Montgomery Violates the Orders to Give the FBI Enough Detail by
October 21 to Find the Software and to Produce the Software by
October 26 .....................................................................................................................10
III.

ARGUMENT ......................................................................................................................11
A. The Court Should Sanction Montgomery and His Counsel for Spoliation
and for Violating Three Court Orders ...........................................................................11
1.

Montgomery Spoliated the Software by Giving His Only


Copy to the FBI Hidden in a Massive Document Dump or
Otherwise Concealing It ..............................................................................11

2.

The Court Should Sanction Montgomery for Violating Three


Discovery Orders .........................................................................................15

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 3 of 27

B. The Court Should Dismiss this Action with Prejudice .................................................16


1.

Montgomerys Bad Faith Spoliation Warrants Dismissal


Sanctions .....................................................................................................16

2.

Montgomerys Bad Faith Violation of Three Discovery


Orders Warrants Dismissal Sanctions .........................................................18

C. The Court Should Award Fees and Costs Against Plaintiff and His
Counsel .........................................................................................................................20
IV. CONCLUSION ......................................................................................................................20

ii

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 4 of 27

TABLE OF AUTHORITIES
Page(s)
Cases
Barnes v. Dalton,
158 F.3d 1212 (11th Cir. 1998) ...............................................................................................12
Bashir v. Amtrak,
119 F.3d 929 (11th Cir. 1997) .................................................................................................15
Cabinetware Inc. v. Sullivan,
1991 WL 327959 (E.D. Cal. July 15, 1991) ............................................................................16
Calixto v. Watson Bowman Acme Corp.,
2009 WL 3823390 (S.D. Fla. Nov. 16, 2009)....................................................................12, 13
Carlucci v. Piper Aircraft Corp.,
102 F.R.D. 472 (S.D. Fla. 1984) ..............................................................................................19
In re Complaint of Boston Boat III, L.L.C.,
2015 WL 5156561 (S.D. Fla. Sept. 2, 2015) ................................................................... passim
Computer Assocs. Intl Inc. v. Am. Fundware Inc,
133 F.R.D. 166 (D. Colo. 1990) ..............................................................................................17
Coquina Invs. v. TD Bank, N.A.,
760 F.3d 1300 (11th Cir. 2014) ...............................................................................................18
Flury v. Daimler Chrysler Corp.,
427 F.3d 939 (11th Cir. 2005). ........................................................................................ passim
Gonzalez v. Business Representation Intl, Inc.,
248 F.R.D. 644 (S.D. Fla. 2008) ........................................................................................14, 16
Gratton v. Great Am. Commcns,
178 F.3d 1373 (11th Cir. 1999) ...............................................................................................19
Griffin v. Alcoa,
564 F.2d 1171 (5th Cir. 1977) .................................................................................................19
Hashemi v. Campaigner Publns, Inc.,
737 F.2d 1538 (11th Cir. 1984) ...............................................................................................19
Hunt v. Liberty Lobby,
720 F.2d 631 (11th Cir. 1983) .................................................................................................11

iii

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 5 of 27

Latele Television, C.A. v. Telemundo Commcns Grp., LLC,


2014 WL 5816585 (S.D. Fla. Nov. 10, 2014)....................................................................17, 20
Lyondell-Citgo Ref., LP v. Petroleos de Venezuela, S.A.,
2005 WL 1026461 (S.D.N.Y. May 2, 2005) ...........................................................................18
Malautea v. Suzuki Motor Co.,
987 F.2d 1536 (11th Cir. 1993) .........................................................................................19, 20
Managed Care Solution, Inc. v. Essent Healthcare, Inc.,
736 F. Supp. 2d 1317 (S.D. Fla. 2010) ..............................................................................11, 13
Martin v. Automobili Lamborghini Exclusive, Inc.,
307 F.3d 1332 (11th Cir. 2002) ...............................................................................................20
National Hockey League v. Metropolitan Hockey Club,
427 U.S. 639 (1976) .................................................................................................................19
Navarro v. Cohan,
856 F.2d 141 (11th Cir. 1988) .................................................................................................19
Optowave Co. v. Nikitin,
2006 WL 3231422 (M.D. Fla. Nov. 7, 2006) ..........................................................................16
Penthouse Intl, Ltd. v. Playboy Enters., Inc.,
663 F.2d 371 (2d Cir. 1981).....................................................................................................17
Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767 (1986) .................................................................................................................12
Point Blank Solutions, Inc. v. Toyobo Am., Inc.,
2011 WL 1456029 (S.D. Fla. Apr. 5, 2011) ............................................................................11
Preferred Care Partners Holding Corp. v. Humana, Inc.,
2009 WL 982460 (S.D. Fla. Apr. 9, 2009) ..............................................................................20
PSG Poker, LLC v. DeRosa-Grund,
2008 WL 190055 (S.D.N.Y. Jan. 22, 2008) ............................................................................15
QBE Ins. Corp. v. Jorda Enters., Inc.,
280 F.R.D. 694 (S.D. Fla. 2012) ..............................................................................................20
Restis v. Am. Coal. Against Nuclear Iran, Inc.,
2015 WL 1344479 (S.D.N.Y. Mar. 23, 2015) .........................................................................18
S. New England Tel. Co. v. Global NAPs, Inc.,
251 F.R.D. 82 (D. Conn. 2008), affd, 624 F.3d 123 (2d Cir. 2010) .......................................18

iv

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 6 of 27

Silvestri v. Gen. Motors Corp.,


271 F.3d 583 (4th Cir. 2001) ...................................................................................................17
Swofford v. Eslinger,
671 F. Supp. 2d 1274 (M.D. Fla. 2009) ...................................................................................13
Telectron, Inc. v. Overhead Door Corp.,
116 F.R.D. 107 (S.D. Fla. 1987) ..................................................................................14, 16, 18
TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC,
929 F. Supp. 2d 1255 (M.D. Fla. 2013) ...................................................................................15
Trulock v. Lee,
66 F. Appx 472 (4th Cir. 2003) ..............................................................................................18
Watkis v. Payless ShoeSource, Inc.,
174 F.R.D. 113 (M.D. Fla. 1997).............................................................................................19
Wm. T. Thompson Co. v. GNC,
593 F. Supp. 1443 (C.D. Cal. 1984) ........................................................................................18
Other Authorities
Fed. R. Civ. P. 37 et seq...........................................................................................1, 15, 18, 19, 20

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 7 of 27

Under the Courts order (ECF No. 154), Defendants James Risen (Risen), Houghton
Mifflin Harcourt Publishing Company (HMH), and Houghton Mifflin Harcourt Company
(HMHC), improperly sued as HMH Holdings, Inc., (collectively Defendants), file this
Memorandum of Law in Support of Their Motion for Sanctions.
I.

PRELIMINARY STATEMENT

Plaintiff Dennis Montgomery (Montgomery) has now violated three court orders and
spoliated what could be the most important evidence in the entire case, the software central to
his burden to prove falsity in this libel claim. (Stay Order, ECF No. 122, at 6.) Defendants seek
the sanction of dismissal because Montgomery deprived them of a fair defense.
First, the Court should sanction Montgomery because in bad faith, he spoliated the
software and violated three discovery orders. Montgomery initially refused to produce the
software, which Defendants had requested since June 1, 2015. Montgomery then testified under
oath on August 20, 2015, and his counsel represented to this Court the next day, that
Montgomery gave the only copy of the software to the FBI that week. Without telling
Defendants or seeking leave of court, Montgomery gave his software to the FBI in a massive
document dump from which the agency could not retrieve the software, at the very least not
without undue burden. Although Montgomery now claims self-servingly after this Court
warned him his conduct could lead to severe sanctions that he believes he did not have
access to his own software and did not give it to the FBI, his shifting story and
misrepresentations only underscore his bad faith.
Second, because Montgomery spoliated the software and violated three discovery orders
in bad faith, and no lesser sanction will suffice to cure the extreme prejudice he caused
Defendants, the Court should recommend dismissal, the inevitable result of his failure to produce
what this Court has called the critical evidence, dooming any chance for him to carry his
burden of proving substantial falsity.
Finally, under Rule 37(b), the Court should also award Defendants attorneys fees and
costs against Montgomery and his counsel as a monetary sanction for their egregious conduct.
1

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 8 of 27

II.

FACTUAL BACKGROUND

As discussed further below, Defendants move for dismissal sanctions based on


Montgomerys and his counsels key actions as follows:

February 24, 2015 Montgomery and his counsel file the Complaint, asserting that
Defendants defamed him by falsely stating that his software did not work or did not exist.
They have a Rule 11(b)(3) duty to have the software as supporting evidence.

June 1, 2015 Defendants request a copy of the software and the location of the software.

July 1, 2015 Montgomery objects to the discovery requests as, e.g., vague and irrelevant.

July 15, 2015 After Defendants explain his objections violate the local rules, he objects to
producing the software, now asserting it is classified, and refuses to provide the locations.

August 4, 2015 Defendants discovery-dispute brief shows the software is not classified.

August 18 or 19, 2015 Montgomery gives his only copy of the software to the FBI.

August 20, 2005 Montgomery testifies under oath at his deposition that he gave the
software to the FBI the day before and he did not keep a copy.

August 21, 2015 Montgomerys counsel represents to the Court that Montgomery gave his
only copy of the software to the FBI on August 18, 2015 for a classification review and he
did not keep a copy. The Court finds the software is highly relevant.

August 22, 2015 The Court orders Montgomery to produce documents on the location of
the software, including correspondence with the FBI, by August 31, and to use his access to
non-classified information to produce the software by September 4.

August 31, 2015 Montgomery fails to produce correspondence with the FBI. He moves to
stay the August 22 order pending a forthcoming objection.

September 3, 2015 The Court denies the motion to stay, finding the software is critical
and that Montgomerys purpose was to, in effect, seek to sequester what could be the most
important evidence in the entire case by giving it to the FBI.

September 4, 2015 Montgomery fails to produce the software. He files an objection.

September 8, 2015 The FBI asks Montgomery for more detail to find the software.

October 16 and 19, 2015 The Court orders Montgomery to produce all correspondence
with the FBI by October 20, to provide the FBI comprehensive detail to find the software or
state he cannot by October 21, and to produce the software by October 26.

October 21, 2015 Montgomery files a declaration contradicting his prior testimony and his
counsels representations to the Court, now swearing he believes he did not have access
to the software and did not provide it to the FBI.

October 23, 2015 The FBI says it will not search for the software since Montgomery now
swears he doubts he gave it to the FBI and he fails to give enough detail to find the software.

October 26, 2015 Montgomery fails to produce the software. Rather, he objects and
moves for a stay, representing that the FBI is still looking for the software.
2

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 9 of 27

A.

Defendants June 1 Request for the Location of the Relevant Software and its
Production, and Montgomerys July 1 and 15 Refusals to Comply

On February 24, 2015, Montgomery brought this libel action against author James Risen,
his publisher, and its holding company, alleging that statements in Chapter 2 (the Chapter) of
Pay Any Price: Greed, Power, and Endless War (the Book) that report allegations that
Montgomery defrauded the federal government by selling it useless software were false and
defamatory.1 To defend against Montgomerys claim that statements in the Book are false
because the software allegedly works, on June 1, Defendants requested a copy and the locations
of the software referred to in the Amended Complaint, including Al Jazeera software (noise
filtering software), the object recognition software, and video compression software mentioned
in the Chapter.2
On July 1, Montgomerys counsel objected to the request to produce the software as
vague, ambiguous, overly broad, and burdensome, and the request to disclose the
locations as largely irrelevant.3 After Defendants warned Montgomerys counsel that the
boilerplate objections violate the local rules, on July 15, Montgomery objected to Defendants
discovery again, refusing to respond concerning the location of the relevant software.4 He also
refused to produce a copy of any software, even under the protective order, asserting that he is
not legally permitted to produce secret classified information.5
B.

Defendants Show Montgomerys Past Cases Find the Software Is Not


Classified and His Pattern of Refusing to Produce the Software

On August 4, 2015, Defendants explained in their Pre-Hearing Memorandum that orders


1

(ECF No. 44, Am. Compl. 23, 48, 49, 65, 120-27, 181-84, 202-21, 230-36, 245-48, 259,
262.) A motion to dismiss or transfer has been fully submitted since June 11, 2015. (ECF
No. 77.) Defendants intend to move for summary judgment by or before December 14, 2015,
after discovery closes on November 19, 2015, arguing, inter alia, Montgomerys failure to
produce evidence that would permit a reasonable jury to find substantial falsity.
2
(ECF No. 90-1, Defs. Interrogs. 9-15 & Reqs. for Produc. 7-15, 26-32, 36-47, 53.)
3
(Pl.s July 1 Resp. & Objections to Interrog. 9 & Reqs. for Produc. 8, attached hereto as Ex. 1.)
4
(ECF No. 90-2, Pl.s July 15 Resp. & Objections to Interrog. 9.)
5
(Id. 9-15) (objecting that the interrogatory calls for information some of which the Plaintiff is not
legally permitted to disclose as being confidential or secret); (Id., Pl.s July 15 Resp. & Objections
to Reqs. for Produc. 7-15, 26-32, 36-47, 53) (objecting on grounds of legal restrictions on the
Plaintiff responding or that he is not legally permitted to disclose all documents or information).
3

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 10 of 27

in Montgomerys previous cases show that his software is not classified, yet he has repeatedly
refused to produce it. (ECF No. 94.) In a case in which Montgomerys former employer,
eTreppid, sued Montgomery for allegedly misappropriating the subject software, the U.S.
government moved for and obtained a protective order under the state secrets privilege to protect
certain classified information from discovery (U.S. Protective Order).6 However, the U.S.
Protective Order specifically excluded Montgomerys software from its scope.7 Thus, the
magistrate judge in Nevada found that [t]he clear understanding in drafting and issuing th[e]
[U.S.] protective order was that the parties would be discussing the nature and capabilities of the
technology, and the type of work each party performed for the government.8
Nonetheless, Montgomery refused to produce the software in both the Nevada litigation
and in his later bankruptcy proceedings in which the U.S. Protective Order was also entered. In
the Nevada action, the magistrate and district judges repeatedly ordered Montgomery to produce
the software, but he refused.9 Thus, the district judge held Montgomery in contempt, imposing a
penalty of $2,500 per day until he produced the software.10 Instead of producing the software,
Montgomery settled the action and signed confessions of judgment for $25 million.11 Then,
Montgomery declared bankruptcy, continued to refuse to produce or describe the software in
bankruptcy, and was thus denied discharge.12 Following this same pattern here, Montgomery is
withholding the software again when it is central to his burden to prove substantial falsity.
C.

Montgomery Testifies in His August 20 Deposition that He Gave the


Software to the FBI and Did Not Keep a Copy

In Montgomerys August 20, 2015 deposition, he testified that he searched for the
6

(Montgomery v. eTreppid Technologies, Inc., 3:06-cv-00056-PMP-VPC (eTreppid), ECF No.


253 (D. Nev. Aug. 29, 2007), Defs. Pre-Hearing Mem. Ex. 2, ECF No. 94-2.)
7
(Id. at 2-3, 4(c) (stating that [t]his Order does not preclude the Parties from serving or taking
any discovery . . . relating to . . . [t]he computer source code, software, programs, or technical
specifications relating to any technology owned or claimed by any of the Parties.).
8
(eTreppid, ECF No. 645, at 6 n.3, Defs. Pre-Hearing Mem. Ex. 3, ECF No. 94-3.)
9
(Id., ECF No. 645; eTreppid, ECF Nos. 728, 765, 769, Defs. Pre-Hearing Mem. Ex. 4, ECF
No. 94-4.)
10
(eTreppid, ECF No. 815, at 3-5, Defs. Pre-Hearing Mem. Ex. 5, ECF No. 94-5.)
11
(eTreppid, ECF Nos. 897, 898, Defs. Pre-Hearing Mem. Ex. 6, ECF No. 94-6.)
12
(eTreppid, ECF Nos. 1206, 22, 1208, 22, Defs. Pre-Hearing Mem. Ex. 8, ECF No. 94-8.)
4

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 11 of 27

software in response to Defendants discovery and gave his only copy of the software to the FBI
on August 19, 2015. (Pl.s Dep. Tr. 127:12-15; 128:1-25; 129:1-4; 131:12-22; 132:21-23,
attached hereto as Ex. 2.) Notably, Montgomery testified:
Q:
A:
Q:
A:

Do you have the software that you used for the Al Jazeera work?
No.
Where is it?
I gave it to the government.

(Pl.s Dep. Tr. 127:13-16.) Thus, Montgomery testified under oath a mere two months ago that
he gave the software to the government.
D.

Montgomerys Counsel Represents to the Court in the August 21 Hearing


that Montgomery Gave the FBI the Only Copy of the Software Days Before

On August 21, the Court held a hearing on the adequacy of Montgomerys responses and
objections to Defendants discovery requests, including the dispute over Montgomerys refusal
to produce the software. At the hearing, Montgomerys counsel confirmed what Montgomery
testified about at his deposition the day before that on August 18 or August 19, Montgomery,
without seeking leave of court or informing Defendants, turned over to the FBI and to the
Department of Justice what he claimed was the one and only copy of the software that
Defendants have since June 1 requested from Montgomery in this action. Montgomerys
counsel represented the following to the Court:
THE COURT: The FBI has the software?
MR. KLAYMAN: They have the software, yes.
THE COURT: How did they get it?
MR. KLAYMAN: Because Mr. Montgomery provided it to them.
THE COURT: When?
MR. KLAYMAN: He provided it to them three days ago. It has been in the
process to provide that to them and he provided them a lot of other information
too, which they are looking at because it is classified information and he is a
whistleblower.
***
THE COURT: 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 software contained classified information; is that correct?
MR. KLAYMAN: That is correct.
THE COURT: And so when this software was turned over three days ago, did
either you, or Mr. Montgomery, keep a copy, or you just gave the software?
5

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 12 of 27

MR. KLAYMAN: We just gave it to them.


THE COURT: No copies?
MR. KLAYMAN: It was just the software and relative to this case the software is
included.
(Aug. 21 Hrg Tr. 6:25; 7:1-10; 8:7-18, ECF No. 111-1.) Montgomerys counsel thus
represented to the Court that Montgomery gave the software to the FBI and did not keep a copy.
The Court agree[d] with [Defendants] that the software is highly relevant for the case.
(Id. 32:23-24.) It credited the Nevada courts finding that the software was not classified. (Id.
30:18-23; 40:7-47:1.) Relying on Montgomerys counsels representation that they gave the FBI
the software, the Court then order[ed] Mr. Montgomery to turn over that software and to take
advantage of his right of continued access to nonclassified information. (Id. 79:24-80:1.)
E.

The August 22 Order to Produce the Software and Obtain It from the FBI

On August 22, the Courts written order required Montgomery to use his self-described
right of continued access to non-classified information (in relation to his turning over the subject
software to the FBI) and produce the software to Defendants. (Aug. 22 Order 6, ECF No.
107.) The order also required him to produce all documents concerning Defendants request
for production number 7 about communications with persons who know about the software and
of its location, which would now include documents related to the disclosure and production of
the subject software to the FBI (id. 5). The order required him to turn over all documents . . .
related to the disclosure and production of the subject software to the FBI by August 31, 2015,
and to produce the software to Defendants by September 4, 2015. (See id. 5-6.)
F.

Montgomery Fails to Comply with the August 31 Deadline

On August 31, 2015, although ordered to produce all documents related to the disclosure
and production of the software to the FBI by that day (Aug. 22 Order 5), Montgomery failed
to comply. Instead, Montgomery moved for a stay of the part of the August 22 Order requiring
him to produce the software and related documents pending his objection. (ECF No. 112.)
G.

The September 3 Denial of Montgomerys Motion to Stay the Order to


Produce the Software

On September 3, 2015, the Court issued an order denying Montgomerys motion to stay.

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 13 of 27

(Stay Order, ECF No. 122.) The Court reiterated that Montgomery shall produce by
September 4, 2015 all documents encompassed in paragraph 6 of the Discovery Order and shall
also produce the software by using the self-described right of continued access to the software
which he turned over to the FBI without maintaining a copy for himself. (Id. at 2.)
The Court found that Montgomery was not likely to succeed on the merits of his
objection that the software is not relevant because Risen did not have the software when he
wrote the Chapter. (Id. at 4.) The Magistrate Judge was not at all persuaded by Montgomerys
argument and instead agreed with Defendants position that the software is highly relevant.
(Id. at 5.) The Court recognized that the theme of Montgomerys Amended Complaint is that
Risen falsely accused Montgomery of being a con man and a fraud who tricked the Government
into purchasing unworkable object recognition software and who asked that tests of the software
be falsified. (Id.) The Court rejected Montgomerys argument, reasoning that Plaintiffs
burden to prove falsity does not hinge on whether he [Risen] ever had a copy of the software
but rather the critical fact is whether in fact the software worked. (Id.) Accordingly,
Defendants have a right to inspect and test the software, the Court concluded; It is highly
relevant and Montgomery must produce it. (Id.) In fact, the Court found, the software is
critical evidence. (Id. at 6.)
The Court found that the overall equities of the discovery dispute and the Discovery
Order at issue further militate against Plaintiffs position because he recently, and secretly,
turned over the software to the FBI without keeping a copy, without advising Defendants of his
plan to do so, without advising this Court of his strategy and without seeking leave of Court
. . . . (Stay Order, ECF No. 122, at 6.) Montgomerys purpose was to, in effect, seek to
sequester what could be the most important evidence in the entire case. (Id.)
H.

Montgomery Fails to Produce the Software by the September 4 Deadline

On September 4, Montgomery defied the Courts two orders by failing to produce the
software that day. Rather, Montgomery filed his objection. (ECF No. 125.)

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 14 of 27

I.

The September 8 Revelation of Montgomerys Document Dump on the FBI

On September 8, 2015, James Baker, the General Counsel of the FBI, wrote a letter to
Montgomerys counsel, and copied this Court and Defendants counsel, to correct any
misunderstandings about the conditions under which the FBI took possession of the materials
from Mr. Montgomery and to address the means by which Montgomery will be afforded
access to the materials he provided to the FBI. (ECF No. 126, at 1.)
Mr. Baker stated that, besides materials Montgomery gave to the FBI purportedly as a
whistleblower, Montgomery had other materials that were wholly irrelevant to the FBI inquiry
that may be on the drives such as the software at issue. (Id. at 2.) But Montgomery wished to
turn over every computer drive in his possession to the FBI. (Id.) Montgomery and the FBI
agreed to establish a procedure to provide Montgomery access to non-classified information if it
did not unduly burden the FBI. (Id.) But Montgomery did not associate the potential
retrieval of this information with any pending civil litigation. (Id.) Further complicating the
task, Montgomery told the FBI that Top Secret, compartmented information may reside
throughout the hard drives, leading the FBI to treat all Montgomerys hard drives as
presumptively classified. (Id. at 3.) In stark contrast to Montgomerys counsels
representations to this Court, Montgomery never asked, and the FBI never agreed, for the
Government to undertake a classification review of [the] software at issue. (Id.)13
Mr. Baker also told Montgomery that the August 26 letter Montgomerys counsel sent to
the FBI was insufficient. [N]otably absent is any information which would assist the
Government in locating and producing the software at issue in Montgomery v. Risen. (ECF No.
126, at 3.) Mr. Baker explained that a letter Montgomery gave the FBI on August 19, 2015 said
that the hard drives contained 51.6 million files amounting to 600 million pages. (Id.)
Combined with Montgomerys claim to the FBI that classified information was contained
throughout the hard drives, this massive amount of information on the hard drives means
there is no reasonable way for the Government to locate and provide the alleged software,
13

Mr. Baker then offered a classification review if the government finds the software. (Id. at 4.)
8

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 15 of 27

absent specific instructions from Montgomery. (Id. at 3-4.)14


Montgomerys counsel and paralegal responded with self-serving declarations showing
they were present at the handover, but denying Mr. Bakers representations. (ECF No. 127.)
J.

The October 16 and 19 Orders Again Requiring Montgomery to Produce the


Software and to Provide the FBI Detailed Instructions to Find It

At a hearing on October 16 (Hrg Tr., attached hereto as Ex. 3), the Court issued an order,
followed by a written order on October 19. (ECF No. 154.) The order again required
Montgomery to produce his communications with the FBI about the software, now by October
20. (Id. 2.)15 It required Montgomery to give the FBI comprehensive instructions on how to
locate the software within the hard drives he turned over to the FBI or, if he cannot tell the FBI
exactly how to identify the software, then he shall so state in the email. (Id. 3.) Last, the
order required him to produce the software by October 26, 2015, which he failed to do. (Id. 4.)
K.

Montgomerys October 21 Declaration Now Swearing that He Did Not Have


Access to His Own Software and Did Not Give It to the FBI

On October 21, 2015, rather than comply with the Courts order to provide the FBI
sufficient instructions to find the software or state that he cannot do so, Montgomery
contradicted his own previous testimony under oath in his deposition, and his counsels
representations in August to the Court, in a declaration. That day, Montgomery filed a
declaration, swearing under oath: Based on my personal knowledge and belief, upon searching
my memory, I do not believe that I have had access to any of the subject software, nor did I
provide it to the Federal Bureau of Investigation (FBI) when I turned over the drives . . . .
(Pl.s Decl., ECF No. 158-1.) He does not explain how he supposedly does not have access to
his own software, where it is now located, or explain this change of story after this Court made

14

Mr. Baker therefore asked Montgomery to provide the FBI: (1) the number or designation of
the drive on which the software is present; (2) the file name of the software; (3) the creation date
of the software; and (4) any other identifier(s) for the software. (Id. at 4.)
15
Although previously ordered, Montgomery did not produce the July 28 and August 12, 2015
letters referenced in Mr. Bakers September 8 letter or any response to Mr. Bakers request for
further information to locate the software until October 20.
9

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 16 of 27

clear in its October 16 and 19 orders that he could face dismissal sanctions.16 Nor does he
explain whether he refers to the Al Jazeera software, the object recognition software, or video
compression software, all of which are the subject of the Chapter and the document request.
Shifting the burden to the FBI, he states: However, I am today providing some additional
information (attached) which may allow the FBI to see if the software in whole or in part
exists on the drives I turned over to the FBI to conduct its ongoing classification review. (Id.)
L.

Montgomery Violates the Orders to Give the FBI Enough Detail by October
21 to Find the Software and to Produce the Software by October 26

On October 23, 2015, Mr. Schwartz emailed Montgomerys counsel that Mr.
Montgomery has now stated that he does not believe that the subject software is on the hard
drives. (Email from Ted Schwartz, attached hereto as Ex. 4.) Not surprisingly given that
belief Mr. Montgomery has not provided us the detailed information requested in the
September 8, 2015 letter which would allow us, without undue burden, to locate the software
among the 51.6 million files which he claims to have provided us. (Id.) Mr. Schwartz repeated
that the FBI would not conduct a classification review. (Id.) Mr. Schwartz concluded that, the
FBI will not search the drives to locate software requested in the Risen litigation. (Id.)
(emphasis added).17
On October 26, 2015, Montgomery did not produce the software. He filed another
objection and request for a stay. (ECF No. 164.) In it, he represented, notwithstanding Mr.
Schwartzs email, that [t]he FBI is working with due speed to search through the millions of
16

Tellingly, Mr. Klayman told the Court he knew from day one that Defendants would move
to dismiss the case if the software the crucial evidence was not produced, yet inexplicably
took no steps to ensure that the software exists or to preserve a copy of the software. (Oct. 16
Hrg Tr. at 17:21-18:2) ([M]aybe we can get the magistrate judge and/or the judge to rule that
the case should be dismissed if you dont turn over something that we never even had anyway
when we wrote the book or relied on. See, and its clever, I predicted this to my colleagues from
day one, that Defendants would try this, okay, and this obviously has come to be true.).
17
Plaintiffs counsel responded to Mr. Schwartz by letter later that night, copying Judge Royce
Lamberth (D.D.C.), offering to provide information if that is required, but my client believes he
has given what it needs to pinpoint any software, if it exists, on the 47 hard drives, which
General Counsel Baker noted in his September 8, 2015, letter containing 51.6 million files
amounting to 600 million pages. (Letter from Mr. Klayman, attached hereto as Ex. 5.)
10

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 17 of 27

files in order to determine whether such software does exist in the documents provided by
Plaintiff without referencing Mr. Schwartzs email to the contrary. (Id. at 6.)
III.
A.

ARGUMENT

The Court Should Sanction Montgomery and His Counsel for Spoliation and
for Violating Three Court Orders
1.

Montgomery Spoliated the Software by Giving His Only Copy to the


FBI Hidden in a Massive Document Dump or Otherwise Concealing It

Spoliation is the destruction, mutilation, alteration, or concealment of evidence. In re


Complaint of Boston Boat III, L.L.C., 2015 WL 5156561, at *2 (S.D. Fla. Sept. 2, 2015)
(Goodman, J.) (citation and quotation marks omitted) (finding intent not required for spoliation).
To obtain sanctions for spoliation, Defendants must show that: (1) the missing evidence existed
at one time; (2) the alleged spoliator had a duty to preserve the evidence; (3) the evidence
was crucial to the movant being able to prove its prima facie case or defense; and (4) the
spoliator acted in bad faith. Id. at *3 (quoting Walter v. Carnival Corp., 2010 WL 2927962, at
*2 (S.D. Fla. July 23, 2010)). See Managed Care Solution, Inc. v. Essent Healthcare, Inc., 736
F. Supp. 2d 1317, 1322 (S.D. Fla. 2010). Defendants meet these four elements.
First, Montgomerys Amended Complaint alleges that the software existed (e.g., Am.
Compl. 23, 48, 49, 65, 206, 245-48, 259, 262), thus satisfying the first element. Cf. Managed
Care Solutions, 736 F. Supp. 2d at 1324 (The parties do not dispute the existence of these
documents.). See also Hunt v. Liberty Lobby, 720 F.2d 631, 649 n.29 (11th Cir. 1983) (We
note that this judicial admission in a pleading is binding on [the pleader].).
Second, Montgomery had a duty to preserve the software. Point Blank Solutions, Inc. v.
Toyobo Am., Inc., 2011 WL 1456029, at *11 (S.D. Fla. Apr. 5, 2011) (stating [o]nce a party
reasonably anticipates litigation, the party must preserve electronically stored information
which is relevant to the dispute) (citing Managed Care Solutions, 736 F. Supp. 2d at 1324). In
Flury v. Daimler Chrysler Corp., six years before plaintiff filed suit against a car manufacturer
claiming his vehicles defective airbag injured him, plaintiff allowed his insurer to sell the
vehicle for scrap despite the defendants pending request for location of the vehicle to inspect it.

11

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 18 of 27

427 F.3d 939, 947 (11th Cir. 2005). Just as the vehicle, which was the very subject of his
lawsuit, needed to be preserved and examined as evidence central to his case in Flury,
Montgomery had a duty to preserve the software in his own libel case alleging falsity because he
claimed the software worked. Id. at 945; Boston Boat, 2015 WL 5156561, at *12 (same as to
boat deck on which plaintiff allegedly slipped and fell).
Third, the Court already found that the software is not only relevant, it is highly
relevant and critical to Montgomerys burden to prove the element of falsity.18 (Aug. 21 Hrg
Tr. 32:23-24, ECF No. 111-1; Stay Order, ECF No. 122, at 5-6); e.g., Boston Boat, 2015 WL
5156561, at *10 (finding destroyed boats deck area and carpet in slip-and-fall case was
critical and crucial evidence). The Court recognized that the theme of the Amended
Complaint is that Risen falsely accused Montgomery of being a con man and a fraud who
tricked the Government into purchasing unworkable object recognition software and who asked
that tests of the software be falsified. (Stay Order, ECF No. 122, at 40.) The Court found that
Plaintiffs burden to prove falsity hinges on the the critical fact [of] whether in fact the
software worked, and thus Defendants have the right to inspect and test the software (id. at 5)
a finding the Court reaffirmed at the October 16 hearing. (Oct. 16 Hrg Tr. 18:3-23, Ex. 3.)
Finally, Montgomery acted in bad faith. In this Circuit, [t]he key to unlocking a courts
inherent power [to impose sanctions for spoliation] is a finding of bad faith. Barnes v. Dalton,
158 F.3d 1212, 1214 (11th Cir. 1998). Defendants may establish bad faith through either direct
or circumstantial evidence. Boston Boat, 2015 WL 5156561, at *9; Calixto v. Watson Bowman
Acme Corp., 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009). Here, Defendants satisfy the
four factors to demonstrate that Montgomery destroyed or concealed evidence in bad faith
through circumstantial evidence: (1) evidence once existed that could fairly be supposed to
have been material to the proof or defense of a claim at issue in the case; (2) the spoliating
party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did
18

E.g., Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986) (holding under the
First Amendment that plaintiffs bear the burden to prove falsity).
12

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 19 of 27

so while it knew or should have known of its duty to preserve the evidence; and (4) the
affirmative act causing the loss cannot be credibly explained as not involving bad faith by the
reason proffered by the spoliator. Boston Boat, 2015 WL 5156561, at *9; Calixto, 2009 WL
3823390, at *16. See Managed Care Solutions, 736 F. Supp. 2d at 1331-32.
First, this element is established because this Court found the software critical
evidence, which is an even higher standard than material. See Boston Boat, 2015 WL
5156561, at *11 (The Undersigned construes material and critical to be similar standards,
but, to the extent that they are different, critical would be the higher burden, and the Undersigned
previously found that the evidence was critical.).
Second, Montgomery committed an affirmative act by recently, and secretly, turn[ing]
over the software to the FBI without keeping a copy, without advising Defendants of his plan
to do so, without advising this Court of his strategy and without seeking leave of Court. (Stay
Order, ECF No. 122, at 6.) The Court based this finding on his testimony under oath at his
deposition on August 20 and his counsels confirmation to the Court on August 21. Moreover,
the FBI not Montgomery later revealed that Montgomery provided the software to the FBI in
a massive document dump of over 51 million files, and he failed to provide the FBI sufficiently
detailed instructions to find the software without, at a minimum, causing an undue burden. (ECF
No. 126, at 3; Schwartz Email, Ex. 4.) This concealment of evidence was undoubtedly an
affirmative act. Boston Boat, 2015 WL 5156561, at *11 (finding defendants decision to
refurbish[] did not happen by accident; rather defendant intentionally decided to rip out the
carpeting and grind down the deck even though it knew about the pending lawsuit).
Third, as explained above, Montgomery knew or should have known well before the
litigation alleging that his software worked that he had to preserve the software itself. His
counsel, an experienced libel lawyer, said he knew from day one that failure to produce the
software could be an issue. (See note 16, supra.)
Fourth, Montgomery has not provided any reason, legitimate or otherwise, why he
cannot produce his own software and identify its current locations to Defendants. See Swofford
13

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 20 of 27

v. Eslinger, 671 F. Supp. 2d 1274, 1282 (M.D. Fla. 2009) (finding that knowing and willful
disregard for the clear obligation to preserve evidence that was solely within the possession and
control of the Defendants and whose contents have no other source than that which has now been
spoliated indicated bad faith); Boston Boat, 2015 WL 5156561, at *12 (finding bad faith when
defendant could not reasonably argue the boat deck was irrelevant to personal injury suit
allegedly caused by the defective deck). There is no reason why he could not keep a copy of his
software when, as he testified under oath and his counsel confirmed, he gave the FBI his only
copy nearly three months after Defendants requested it in discovery and a few days before the
parties held a discovery hearing before this Court about production of the software. He does not
explain why he could not provide the FBI sufficiently detailed instructions to find the software in
the massive document dump he foisted upon the FBI in the midst of this discovery dispute.
Then, after the Court warned him that Defendants could move for sanctions, including dismissal,
if he did not comply by October 26, 2015, Montgomery contradicted his sworn testimony and his
counsels representations and said he now believe[d] he did not have access to his own
software and did not provide the software to the FBI.19
Montgomerys failure to produce the software based on changing, legally insufficient
stories in the face of Defendants repeated requests and court orders is evidence of bad faith or
willfulness. See Gonzalez v. Business Representation Intl, Inc., 248 F.R.D. 644 (S.D. Fla. 2008)
(finding bad faith when plaintiff made false statements, and obstructed access to highly relevant
evidence by revoking medical authorization); Telectron, Inc. v. Overhead Door Corp., 116

19

If Montgomerys latest declaration under oath is true that he did not have access to the
software or give it to the FBI in August then he and his counsel lied to the Court and led
Defendants, this Court, and the FBI on a wild goose chase. These facts give rise to the strong
inference that: (1) he does not have access to the software because he spoliated it; (2) he violated
Rule 11(b)(3) by bringing this suit when he knew he could not prove falsity, a critical element of
any libel claim; (3) he never had access to the software or it never existed, thus explaining his
refusal to turn it over in the Nevada litigation and his bankruptcy case; or (4) he knows the
software does not work and never worked, and thus he dare not expose it to scrutiny. Under any
of these circumstances, Defendants are entitled to dismissal because Montgomery cannot prove
falsity, he acted in bad faith, and he caused severe prejudice to the Defendants.
14

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 21 of 27

F.R.D. 107, 131-36 (S.D. Fla. 1987) (entering default judgment under inherent powers and Rule
37 for destroying relevant documents after party served with complaint and requests for
production, and flagrant dishonesty); PSG Poker, LLC v. DeRosa-Grund, 2008 WL 190055, at
*12 (S.D.N.Y. Jan. 22, 2008) ([F]ailure to either produce relevant documents or a credible story
regarding their whereabouts despite the admonitions of this Court and repeated requests from
the plaintiffs can only be interpreted as an intentional and willful act). At bottom,
Montgomerys purpose was to, in effect, seek to sequester what could be the most important
evidence in the entire case. (Stay Order, ECF No. 122, at 6.) This egregious conduct
sustain[s] an inference of consciousness of a weak case the very definition of bad faith.
Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997).
2.

The Court Should Sanction Montgomery for Violating Three


Discovery Orders

An independent basis for sanctions is that Montgomery violated three court orders
requiring him to produce the software. Under Rule 37, [i]f a party . . . fails to obey an order to
provide or permit discovery, including an order under Rule . . . 37(a), to compel as entered here,
the Court may issue a variety of sanctions. Fed. R. Civ. P. 37(b)(2)(A). Montgomery violated
the August 22 order and stay order to produce the software by September 4, 2015, based on the
insufficient excuse that he objected to the discovery order.20 Montgomery also violated the
August 22 order and October 19 order to exercise his right of continued access to non-classified
information by failing to give the FBI sufficient information to find the software, without, at a
minimum, undue burden. Most recently, he violated the October 16 and 19 orders to produce the
software by October 26.

20

E.g., TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1260 (M.D.
Fla. 2013) (explaining that an object[ion] to a magistrate judges order on a non-dispositive
matter . . . does not stay the order or relieve the party of the obligation to comply with the
order.). Defendants provided this authority to Montgomerys counsel on September 24, 2015.
(Email to Mr. Klayman, attached hereto as Ex. 6.)
15

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 22 of 27

B.

The Court Should Dismiss this Action with Prejudice


1.

Montgomerys Bad Faith Spoliation Warrants Dismissal Sanctions

The Court has broad discretion to fashion a remedy for spoliation. See Optowave Co. v.
Nikitin, 2006 WL 3231422, at *7 (M.D. Fla. Nov. 7, 2006) (citing Chambers v. NASCO, Inc.,
501 U.S. 32, 43 (1991)). The Court determines the appropriate sanction . . . on a case-by-case
basis. Id. at *12 (citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004)).
Sanctions the Court may impose against a plaintiff for spoliation include: (1) dismissal; (2) a
finding, adverse inference, or rebuttable presumption instruction to the jury; and (3) an award of
fees and costs. See Flury, 427 F.3d at 945. These sanctions for discovery abuses are intended
to prevent unfair prejudice to litigants and to insure the integrity of the discovery process. Id. at
944 (citing Gratton v. Great Am. Commcns, 178 F.3d 1373, 1374 (11th Cir. 1999)).
Factors to determine the proper sanctions include: (1) the willfulness or bad faith of the
party responsible for the loss or destruction of the evidence; (2) the degree of prejudice sustained
by the opposing party; and (3) what is required to cure the prejudice. Boston Boat, 2015 WL
5156561, at *12 (citation and quotation marks omitted). Dismissal is appropriate in this Circuit,
when, as here, plaintiff spoliates in bad faith shown by misrepresentations, intentional acts, and
repeated violations; plaintiff causes severe prejudice by obstructing access to the critical
evidence on a case-dispositive element of plaintiffs burden; and only dismissal will cure the
prejudice the spoliation caused. Flury, 427 F.3d at 947 (reversing adverse-inference sanction for
spoliation and instructing trial court to dismiss); Gonzalez, 248 F.R.D. 644, 646-47 (dismissing
as sanction for bad faith spoliation); Telectron, 116 F.R.D. at 131-36 (same).
Here, the bad faith and prejudice are extreme substantially depriving Defendants of
their critical evidence. Just as the vehicle in Flury was, in effect, the most crucial and
reliable evidence available to the parties, the software could be the most important evidence in
the entire case. (Stay Order, ECF No. 122, at 6.) See Flury, 427 F.3d at 944-45; Cabinetware
Inc. v. Sullivan, 1991 WL 327959, at *5 (E.D. Cal. July 15, 1991) (imposing default as only
sanction sufficient to serve both the necessary deterrent and punitive functions when defendant
16

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 23 of 27

destroyed source code for allegedly infringing computer program). Moreover, the plaintiff in
Flury was fully aware that defendant wished to examine the vehicle yet ignored defendants
request and allowed the vehicle to be sold for salvage without notif[ying] . . . defendant. Id. at
945. Here, Montgomery gave his only copy of the software to the FBI in a document dump,
without telling Defendants, preventing Defendants expert from inspecting it, which is more
egregious than Flury, because Defendants here had requested the software and its location for
months in discovery. Computer Assocs. Intl Inc. v. Am. Fundware Inc, 133 F.R.D. 166, 169-70
(D. Colo. 1990) (dismissing as sanction since willful destruction occurred after complaint filed,
request for production, and motion to compel emphasizing importance of destroyed source code).
As in Flury, Plaintiffs failure to preserve the [software] resulted in extreme prejudice to
the defendant because defendant did not have an opportunity to examine the software, so
defendants lost a valuable opportunity to test plaintiffs theory that the software worked. 427
F.3d at 945-46; accord Silvestri v. Gen. Motors Corp., 271 F.3d 583, 593 (4th Cir. 2001)
(dismissal for spoliation warranted when the effect of the spoliators conduct was so prejudicial
that it substantially denied the defendant the ability to defend the claim). There, direct
examination of the vehicle[] was critically important to this case, so the lower court erred in
concluding that a simple jury instruction could cure the resulting prejudice to defendant. Id. at
946. Worse than Flury where [s]poliation of the vehicle forced experts to use much less
reliable means of examining the products condition, here, Defendants expert has no evidence
of the software to test, leading to trial by ambush. Id. at 945-46.
Finally, a lesser sanction would not cure the prejudice. As Montgomerys history of
refusing to produce the software shows discovery orders and contempt sanctions will not work;
nothing short of dismissal will be effective.21 Sanctions such as a finding or an adverse inference
21

See Latele Television, C.A. v. Telemundo Commcns Grp., LLC, 2014 WL 5816585, at *10
n.17 (S.D. Fla. Nov. 10, 2014) (Goodman, J.) (noting dismissal would be appropriate when
less-drastic sanctions would not ensure compliance with the courts orders) (citing Navarro v.
Cohan, 856 F.2d 141, 142 (11th Cir. 1988)); Penthouse Intl, Ltd. v. Playboy Enters., Inc., 663
F.2d 371, 388 (2d Cir. 1981) (dismissing trade libel suit as sanction, stating that the court should
17

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 24 of 27

that the software does not work or does not exist compels dismissal because Montgomery could
not, as a matter of law, carry his burden of proving falsity.22 When, as here, the parties would
incur substantial litigation expenses and the adjudication would consume valuable judicial
resources, only to arrive at the same substantive outcome as [dismissal] will achieve with much
greater efficiency and at substantially lower cost, a court should dismiss. Telectron, 116 F.R.D.
at 135 (dismissing when adverse inference would lead to default judgment at far greater cost).23
Here, the extraordinary nature of plaintiffs actions coupled with extreme prejudice to the
defendant warrants dismissal. Flury, 427 F.3d at 943.24
2.

Montgomerys Bad Faith Violation of Three Discovery Orders


Warrants Dismissal Sanctions

Under Rule 37(b), the Court should recommend dismissing the action. Fed. R. Civ. P.
37(b)(2)(A)(v). As under the Courts inherent power, Rule 37(b) gives broad discretion to the
view defiance of [an] order . . . against the background of [plaintiffs] prolonged and vexatious
obstruction of discovery [concerning] closely related and highly relevant records).
22
Even if the government could find the software and asserted it was classified and prior
proceedings suggest otherwise (see II.B, supra) the case would have to be dismissed. See, e.g.,
Trulock v. Lee, 66 F. Appx 472, 476-77 (4th Cir. 2003) (per curiam) (affirming dismissal of
libel action brought by former official Mr. Klayman represented because classified information
subject to state secrets privilege was central to proving falsity); Restis v. Am. Coal. Against
Nuclear Iran, Inc., 2015 WL 1344479, at *5-8 (S.D.N.Y. Mar. 23, 2015) (dismissing libel action
on accusations plaintiff violated Iran sanctions where case would disclose state secrets).
23
See also S. New England Tel. Co. v. Global NAPs, Inc., 251 F.R.D. 82, 95 (D. Conn. 2008)
(entering terminating sanctions where any adverse inference sufficient to sanction defendants
and address the harm to [plaintiff] would effectively amount to a directed verdict or the
equivalent of a default judgment), affd, 624 F.3d 123 (2d Cir. 2010); Wm. T. Thompson Co. v.
GNC, 593 F. Supp. 1443, 1456 (C.D. Cal. 1984) (entering default judgment because lesser
sanction of excluding defendants proof would virtually compel directed verdict).
24
Dismissal is clearly the appropriate sanction, but, even if the Court were to dismiss, it should
also enter a finding or adverse inference that the software either does not exist or does not work
that could be referenced in any later summary judgment motion, if, for any reason, Montgomery
objects to the dismissal and it is not sustained, at least prior to summary judgment. See Coquina
Invs. v. TD Bank, N.A., 760 F.3d 1300, 1319 (11th Cir. 2014) (affirming sanction finding facts
established that partys fraud detection was unreasonable and it knew of fraud when, inter alia,
party failed to reasonably search for and produce documents); Boston Boat, 2015 WL 5156561,
at *13 (imposing rebuttable presumption instruction when defendants ripped out carpet and
refurbished boat deck but kept sample of carpet to inspect); Lyondell-Citgo Ref., LP v. Petroleos
de Venezuela, S.A., 2005 WL 1026461, at *4 (S.D.N.Y. May 2, 2005) (adopting adverse
inference against party refusing to produce allegedly classified information under court order).
18

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 25 of 27

district court to dismiss if it finds willful or bad faith failure to obey a discovery order.
Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993); Boston Boat, 2015 WL
5156561, at *6. Dismissal should not be imposed if lesser sanctions will suffice. Navarro,
856 F.2d at 142. But a default sanction may be proper even when not preceded by the
imposition of lesser sanctions because Rule 37 does not require the vain gesture of first
imposing . . . ineffective lesser sanctions. Malautea, 987 F.2d at 1544.
Indeed, in National Hockey League v. Metropolitan Hockey Club, the Supreme Court
warned lower courts not to show lenity in ordering dismissal sanctions for failure to comply
with a discovery order because Rule 37 sanctions should not only penalize those whose conduct
deserves sanctions, but deter others tempted to engage in similar conduct. 427 U.S. 639, 642-43
(1976) (reversing appellate courts decision not to dismiss as Rule 37(b) sanction for partys
violation of court orders). Accord Watkis v. Payless ShoeSource, Inc., 174 F.R.D. 113 (M.D.
Fla. 1997) (dismissing under Rule 37(b) for violating discovery orders). Thus, this Circuit has
upheld dismissal sanctions, when, as here, the party violates court orders in bad faith.25
When, as here, a party has consistently disobeyed orders, obstructed discovery, delayed
proceedings and made misrepresentations to the court, an extreme sanction is warranted.
Carlucci v. Piper Aircraft Corp., 102 F.R.D. 472, 488 (S.D. Fla. 1984) (dismissing as sanction
for spoliation and violating discovery orders). For example, in Gratton v. Great American
Communications, this Circuit affirmed the sanction of dismissal when plaintiff not only spoliated
cassette tapes in his possession, custody, or control and violated multiple discovery orders, but
like Montgomerys inadequate attempts to obtain the software from the FBI flout[ed] the
district courts order to give a detailed description of his efforts to locate the tapes. 178 F.3d
25

See, e.g., Hashemi v. Campaigner Publns, Inc., 737 F.2d 1538, 1539 (11th Cir. 1984)
(affirming dismissal; the district court retains the discretion to dismiss a complaint where the
partys conduct amounts to flagrant disregard and willful disobedience of the courts discovery
orders) (quotation marks omitted); Griffin v. Alcoa, 564 F.2d 1171, 1172 (5th Cir. 1977) (per
curiam) (the Circuit has approved dismissal as a sanction imposed under Rule 37(d), [where]
plaintiffs failure to comply with discovery has involved either repeated refusals or an indication
of full understanding of discovery obligations coupled with a bad faith refusal to comply).
19

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 26 of 27

at 1375. Similarly, in Malautea, the Circuit affirmed dismissal sanctions, holding defendants
richly deserved the sanction of a default judgment where, as here, the discovery orders clearly
encompassed the information requested by plaintiffs. 987 F.2d at 1542-43. As in Malautea,
dismissal sanctions are appropriate because, here, the party violated multiple discovery orders
without a legitimate excuse, and thus in bad faith, by concealing and delaying producing
documents subject to the orders. Id. at 1542-44. Thus, the Court should dismiss with prejudice.
C.

The Court Should Award Fees and Costs Against Plaintiff and His Counsel

The Court has broad discretion to award attorneys fees and costs against a party and
attorney as an additional sanction under its inherent power and Rule 37(b). Fed. R. Civ. P.
37(b)(2)(C); Latele, 2014 WL 5816585, at *10 (awarding attorneys fees and costs for failing to
timely produce documents, violation of court orders, and misrepresentations); Preferred Care
Partners Holding Corp. v. Humana, Inc., 2009 WL 982460, at *8 (S.D. Fla. Apr. 9, 2009)
(assess[ing] a monetary sanction of costs and attorneys fees due to partys grossly negligent
discovery conduct).26 Thus, the Court should order Montgomery and his counsel to pay
Defendants attorneys fees and costs for preparing and arguing this sanctions motion.27
IV.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court grant their
motion for sanctions and prepare a report and recommendation to dismiss this action, along with
an order imposing monetary sanctions.

26

The Court may enter sanctions orders rather than a report and recommendation for
discovery failures which do not strike claims, completely preclude defenses or generate
litigation-ending consequences, including monetary sanctions. QBE Ins. Corp. v. Jorda Enters.,
Inc., 280 F.R.D. 694, 694 n.2 (S.D. Fla. 2012) (Goodman, J.).
27
The Court should order Montgomerys counsel to pay the monetary sanction because
Montgomery has represented that he is destitute. Martin v. Automobili Lamborghini Exclusive,
Inc., 307 F.3d 1332, 1337 (11th Cir. 2002) (holding that court must take into consideration the
financial circumstances of the party being sanctioned).
20

Case 1:15-cv-20782-JEM Document 166 Entered on FLSD Docket 10/28/2015 Page 27 of 27

Dated: October 28, 2015

Respectfully submitted,

s/Brian W. Toth
Sanford L. Bohrer
Florida Bar No. 160643
sbohrer@hklaw.com
Brian W. Toth
Florida Bar No. 57708
brian.toth@hklaw.com
HOLLAND & KNIGHT LLP
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Telephone: (305) 374-8500
Fax: (305) 789-7799
and
Laura R. Handman (admitted pro hac vice)
laurahandman@dwt.com
Micah J. Ratner (admitted pro hac vice)
micahratner@dwt.com
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Ave., NW, Suite 800
Washington, D.C. 20006
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants
CERTIFICATE OF SERVICE
I certify that on October 28, 2015, I filed this document with the Clerk of Court using
CM/ECF, which will serve this document on all counsel of record.
s/Brian W. Toth

21

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 1 of 22

EXHIBIT 1

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 2 of 22

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-20782-MARTINEZ/GOODMAN
DENNIS L. MONTGOMERY,
Plaintiff,
v.
JAMES RISEN, HOUGHTON MIFFLIN
HARCOURT PUBLISHING CO.,
HOUGHTON MIFFLIN HARCOURT CO.,
and HMH HOLDINGS, INC.,
Defendants.
/
PLAINTIFFS RESPONSES TO DEFENDANTS FIRST SET OF
INTERROGATORIES AND FIRST SET OF REQUESTS FOR
PRODUCTION OF DOCUMENTS TO PLAINTIFF
INTERROGATORIES
General Objection: Defendants number of interrogatories exceeds, counting subparts and
compound interrogatory questions, the 25 interrogatory limit mandated by Rule 33 of the Federal
Rules of Civil Procedure and thus is null and void in its entirety.

1.

Please provide the name, address, telephone number, place of employment and

job title of any person who has, claims to have, or whom you believe may have knowledge or
information pertaining to any fact alleged in the Amended Complaint, or any fact underlying the
subject matter of this action.
Objection: This interrogatory is overly broad and unduly burdensome and lends itself to a
narrative response which can be elicited at deposition through oral testimony.
2.

Please state the specific nature and substance of the knowledge that you believe
1

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 3 of 22

the persons identified in your response to interrogatory 1 may have. See objection to
interrogatory 1.
3.

Please provide the name of each person whom you may use as an expert

witness at trial.
Response: Plaintiff has not chosen experts at this time but reserves the right to do so later.
4.

Please state in detail the substance of the opinions to be provided by each

person whom you may use as an expert witness at trial.


Response: N/A
5.

Please state each item of damage that you claim, and include in your answer: (i)

the claim for relief to which the item of damages relates; (ii) the category into which each item
of damages falls, i.e. general damages, special or consequential damages (such as lost profits),
interest, and any other relevant categories; (iii) the factual basis for each item of damages; and
(iv) an explanation of how you computed each item of damages, including but not limited to
any mathematical formula used.
Response: Objection: This interrogatory is overly broad, unduly burdensome and lends
itself to a narrative response to be obtained at deposition.
6.

Please state your full name (including any alias you have used), present

address, Social Security number, date of birth, and educational and employment background
chronologically.
Response: Objection: This interrogatory is overly broad, unduly burdensome and lends
itself to a narrative response to be obtained at deposition.
7.

Please identify all addresses where you lived since January 1, 1998 and the

dates during which you lived at each address.


Response: Objection: This interrogatory is overly broad, unduly burdensome and in large
2

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 4 of 22

part irrelevant. Plaintiff has already provided his current address and other information showing
that he is a Florida citizen and resident of Miami-Dade County, Florida. Any additional
information, if relevant and not unduly burdensome, can be obtained in a narrative response
during his deposition.
8.

Please identify any training, certification, or degree you obtained pertaining to

software, including but not limited to computer science, computer programming, programming
languages, software development, or software engineering.
Response: Objection: This interrogatory calls for a narrative response more suited for
deposition and is overly broad and in large part irrelevant.
9.

Please identify all persons with knowledge of your or your companies software

or the location of your software, and describe the substance of each persons knowledge.
Response: Objection: This interrogatory is unduly burdensome, overly broad, largely
irrelevant and calls for a narrative response more suitable for deposition.
10.

Please identify all persons with knowledge of the Government[s] . . . own

independent tests of Plaintiff Montgomerys software that confirmed its effectiveness and
reliability referred to in paragraph 48 of the Amended Complaint and describe the substance of
each persons knowledge.
Response: Objection: This interrogatory is overly broad, burdensome and in any event calls
for a narrative response more suitable for deposition.
11.

Please identify any evidence that the Government has continued to use

Plaintiff Montgomerys software and technology referred to in paragraph 49 of the Amended


Complaint.
Response: Objection: This interrogatory calls for a narrative response more suitable for
deposition. In addition, it is vague and ambiguous and calls for a legal conclusion on what
3

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 5 of 22

constitutes evidence.
12.

Please identify any evidence of your or your companies multiple and ongoing

business dealings within the state of Florida referred to in paragraph 13 of the Amended
Complaint and identify all persons with knowledge of such business or business opportunities.
Response: Objection: This interrogatory is vague and ambiguous and calls for a legal
conclusion as to what constitutes evidence, and is largely irrelevant and unduly burdensome.
To the extent that it calls for relevant information, the response is more suitable for a narrative
response at deposition.
13.

Please identify any evidence of business opportunities you or your companies

sought pertaining to your software or any such business you obtained from any person in
Florida, Washington, California, Nevada, the District of Columbia, Maryland, or Virginia and
identify all persons with knowledge of such business or business opportunities
Response: Objection: This interrogatory is vague and ambiguous as it refers to evidence,
which is not defined and in any event calls for a legal conclusion. This interrogatory calls for a
narrative response to the extent that properly defined information is requested, and this
narrative response is more suitable for deposition.
14.

Please identify any evidence that you or your companies lost business

opportunities pertaining to your software as a result of the Book.


Response: This interrogatory is vague and ambiguous and in any event calls for a legal
conclusion. To the extent that relevant and properly defined information ultimately is
requested, this information calls for a narrative response more suitable for deposition.
15.

Please identify all persons (except for your attorneys) who communicated with

you about the Book and state the substance of those communications.
Response: Objection: Subject to work product. In addition, the interrogatory is indefinite as
4

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 6 of 22

to time and is overly broad and ambiguous, and largely irrelevant. In addition, this interrogatory
is more suited for a narrative response at deposition.
16.

Please identify the companies in which you are or were an owner, investor,

partner, shareholder and/or employee referred to in paragraph 22 of the Amended Complaint


and state your relationship with each company.
Response: Objection: This interrogatory is overly broad, vague and ambiguous, goes
beyond any information that might be relevant and any response is more suited for a narrative
response at deposition.
17.

Please identify any evidence that you or your immediate family has been

subject to a Fatwah or threat by any entity, individual, or organization, including but not
limited to: (i) the substance of any such Fatwah or threats; (ii) whether you reported any
Fatwah or threats to law enforcement; and (iii) what steps you or law enforcement took to
protect yourself or your immediate family from any such Fatwah or threats.
Response: Objection: This interrogatory constitutes a multiple compound question, is
overly broad, and any response is more suitable for a narrative response at deposition.
18.

Please identify any litigation, including but not limited to filing for bankruptcy,

in which you have been involved as a party or witness, other than this action, including but not
limited to: (i) the parties; (ii) the jurisdiction in which the case was brought; (iii) the date the
case was filed; (iv) the Courts case number; (v) declarations and affidavits you signed, and
testimony in any deposition, hearing, or trial that you gave under oath; (vi) the disposition of
the case; (vii) whether you were subject to any sanction or contempt in the case; and (viii)
whether and which party paid any settlement or damages, and, if so, the amount.
Objection: This interrogatory is a compound question and is overly broad, vague and
ambiguous, and in any event to the extent that any requested information is relevant it is more
5

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 7 of 22

suitable for a narrative response at deposition.


19.

Please state whether you were the target of a criminal investigation, arrested,

charged, pleaded guilty or nolo contendere, or convicted of a felony or a misdemeanor, and if


so, identify (i) the jurisdiction; (ii) the Courts case number; (iii) the statute or code section
number of the felony or misdemeanor; (iv) the date of your arrest, charge, plea, or conviction;
(v) declarations and affidavits you signed, and testimony in any grand jury proceeding,
hearing, or trial that you gave under oath; (vi) the sentence; and (vii) the disposition.
Response: Objection: See objection to interrogatory 18, above.
20.

Please identify the addresses where your wife (and if applicable where any

minor child) lived from January 1, 2014 to the present, giving the inclusive dates applicable to
each such address.
Response: Objection: This interrogatory is calculated to harass Plaintiff and his family and
is irrelevant and not calculated to lead to relevant evidence. It is also ill-defined and vague and
ambiguous.
21.

Please identify the addresses your bank and credit card issuers had on file for

you from January 1, 2014 to the present, giving the inclusive dates applicable to each such
address.
Response: Objection: Same objection as interrogatory 20, above.
22.

Please identify your doctors and their addresses from January 1, 2014 to the

present.
Response: Objection: This interrogatory is overly broad, burdensome, vague and
ambiguous and largely irrelevant. In any event, if the interrogatory is redrafted and narrowed, a
narrative response is more suitable for deposition.
23.

Please identify any accountant you retained from January 1, 1998 to the present.
6

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 8 of 22

Response: Objection: This interrogatory is overly broad, vague and ambiguous, ill-defined
and largely irrelevant.
REQUEST FOR PRODUCTION OF DOCUMENTS
General Objection: These document requests, with subparts, comprise of hundreds of requests,
are unduly burdensome, oppressive, and harassing and are therefore void in its entirety.

1.

Please produce all documents and electronically stored information you

identified in responding to the interrogatories above. See objection to interrogatories.


Objection: This request is overly broad, unduly burdensome, irrelevant in various respects
as set forth above.
2.

Please produce all documents and electronically stored information you did not

produce in your initial disclosures served upon Defendants on April 24 and 27: (i) that you may
use to support your claims, unless the use would be solely for impeachment; and (ii) that serve
as a basis for your computation of each category of damages you claim, including but not
limited to materials bearing on the nature and extent of injuries suffered, unless privileged or
protected from disclosure.
Response: Objection: This request is overly broad. However, any relevant documents will
be made available for inspection and copying at a mutually agreed date, time and place.
3.

Please produce all documents and electronically stored information pertaining

to individuals with knowledge or information about facts in the Amended Complaint or any
fact underlying the subject matter of this action identified in response to interrogatories 1-2.
Objection: This request is vague and ambiguous and overly broad. Nevertheless, any relevant
and non-privileged documents will be made available for inspection and copying at a mutually
agreed date, time and place.
7

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 9 of 22

4.

Please produce all documents and electronically stored information pertaining

to each person whom you may use as an expert witness at trial identified in response to
interrogatories 3-4, including but not limited to: (i) all curriculum vitae or resumes; (ii) all
publications, reports, presentations, or other documents listed on the curriculum vitae or
resumes; (iii) all documents reviewed or considered in connection with his or her work on this
action; (iv) all documents on which he or she relied in forming his or her opinions in connection
with this action; (v) all reports, declarations, affidavits, notes, and correspondence made by or
prepared for the expert in connection with this lawsuit, including but not limited to all drafts of
such documents and all correspondence between or including the expert and you or your
attorneys; and (vi) all expert reports and transcripts of depositions, hearings, and trial testimony
given or written by the expert within the previous four years in any action.
N/A at this time.
5.

Please produce all documents and electronically stored information pertaining

to damages you or your companies allegedly sustained from conduct attributable to Defendants
identified in response to interrogatory 5 above.
Objection: See objection to interrogatory 5. Notwithstanding this, any relevant and nonprivileged documents will be made available for inspection and copying at a mutually
convenient date, time and place.
6.

Please produce all documents and electronically stored information reflecting

any training, certification, or degree you obtained pertaining to software, including but not
limited to computer science, computer programming, programming languages, software
development, or software engineering identified in response to interrogatory 8 above.
Objection: See objection to interrogatory 8. This request is overly broad and vague and
ambiguous. Not withstanding, this any relevant and non-privileged documents will be produced
8

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 10 of


22
for inspection and copying at a mutually agreed date, time and place.
7.

Please produce all documents and electronically stored information pertaining

to all persons with knowledge of your or your companies software or the location of your
software identified in response to interrogatory 9 above.
Objection: See objection to interrogatory 9. Notwithstanding this, any non-privileged
relevant documents will be produced for inspection and copying at a mutually agreed date, time
and place.
8.

Please produce a copy of your software.

Objection: Vague and ambiguous and overly broad and burdensome.


9.

Please produce copies of the Government[s] . . . own independent tests of

Plaintiff Montgomerys software or your companies software that confirmed its effectiveness
and reliability referred to in paragraph 48 of the Amended Complaint and identified in
response to interrogatory 10 above.
Objection: Same objection as interrogatory 10. Notwithstanding this, any relevant, nonprivileged documents will be made available for inspection and copying at a mutually
convenient date, time and place.
10.

Please produce all documents and electronically stored information pertaining

to your allegation in paragraph 49 of the Amended Complaint that the Government has
continued to use Plaintiff Montgomerys software and technology identified in response to
interrogatory 11 above.
Objection: Overly broad, vague. These documents, if non privileged, are not in the
custody, possession or control of Plaintiff. Any such non-privileged relevant documents
that are will be produced at a mutually convenient date, time and place.
11.

Please produce all documents and electronically stored information pertaining


9

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 11 of


22
to your or your companies multiple and ongoing business dealings within the state of Florida
referred to in paragraph 13 of the Amended Complaint and identified in response to
interrogatory 12 above.
Response: Objection on the same grounds as interrogatory 13. Notwithstanding this
objection, any relevant non-privileged documents will be produced at a mutually convenient
date, time and place.
12.

Please produce all documents and electronically stored information pertaining

to any business opportunities you or your companies sought pertaining to your software or any
such business you obtained from any person in Florida, Washington, California, Nevada, the
District of Columbia, Maryland, or Virginia identified in response to interrogatory 13 above.
Response: See objection to interrogatory 13. Notwithstanding this response, any relevant
non-privileged documents will be produced at a mutually convenient date, time and place.
13.

Please produce all documents and electronically stored information evidencing

that you or your companies lost business opportunities pertaining to your software as a result of
publication of the Book identified in response to interrogatory 14 above.
Response: See objection to interrogatory 14. Notwithstanding this, any relevant nonprivileged documents will be produced at a mutually convenient date, time and place.
14.

Please produce all documents and electronically stored information pertaining

to communications between you and all persons who communicated with you about the Book
identified in response to interrogatory 15 above.
Response: See objection to interrogatory 15. Notwithstanding this, any relevant nonprivileged documents will be produced at a mutually convenient date, time and place.
15.

Please produce for each of your companies referred to in paragraph 22 of the

Amended Complaint and identified in response to interrogatory 16 above: (i) incorporation


10

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 12 of


22
documents, organization documents, or partnership agreements; (ii) bylaws; (iii) minutes of
meetings pertaining to any transaction, relationship, or contract between your companies and the
U.S. government; and (iv) documents and electronically stored information reflecting the value
of your ownership interests in your companies from January 1, 1998 to the present.
Response: Objection on grounds of being unduly burdensome, vague and ambiguous,
relevancy and oppressiveness. Notwithstanding this, any relevant non-privileged documents
will be produced at a mutually convenient date, time and place.
16.

Please produce all documents and electronically stored information pertaining

to any Fatwah or threats identified in response to interrogatory 17 above.


Response: See objection to interrogatory 17. Notwithstanding this, any relevant nonprivileged documents will be produced at a mutually convenient date, time and place.
17.

Please produce your complaint, your amended complaint, your answer,

sanctions order against you, contempt order against you, and any order disposing of any
litigation (including but not limited to bankruptcy case) in which you have been involved as a
party or witness, other than this action, identified in response to interrogatory 18 above.
Response: See objection to interrogatory 18. This request is wholly irrelevant.
18.

Please produce all documents and electronically stored information pertaining

to your arrest, conviction, or plea of guilty or nolo contendere to any felony or misdemeanor
identified in response to interrogatory 19 above.
Response: See objection to interrogatory 19. This request is wholly irrelevant.
19.

Please produce all declarations and affidavits you signed, and testimony in any

deposition, hearing, grand jury proceeding, or trial that you gave under oath identified in
response to interrogatories 18 and 19 above.
Response: See objections to interrogatories 18 and 19. In addition, this request is
11

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 13 of


22
irrelevant, overly broad and burdensome, oppressive and harassing.
20.

Please produce all documents and electronically stored information pertaining

to the addresses where your wife (and if applicable where any minor child) lived from
January 1, 2014 to the present identified in response to interrogatory 20 above.
Response: See objection to interrogatory 20. This request is also harassing and irrelevant.
21.

Please produce all documents and electronically stored information pertaining

to the addresses your bank and credit card issuer had on file for you from January 1, 2014 to
the present identified in response to interrogatory 21 above.
Response: See objection to interrogatory 21.This request is overly broad, harassing and
irrelevant.
22.

Please produce all documents and electronically stored information pertaining

to the addresses of your doctors from January 1, 2014 to the present identified in response to
interrogatory 22 above.
Response: Objection on the grounds set forth in response to interrogatory 22. This request
is overly broad, harassing and largely irrelevant.
23.

Please produce all documents and electronically stored information pertaining

to any accountant you retained from January 1, 1998 to the present identified in response to
interrogatory 23 above.
Response: See objection to interrogatory 23. This request is overly broad, ill-defined and
vague and ambiguous and largely irrelevant and is intended mainly to harass.
24.

Please produce all documents and electronically stored information pertaining

to patents that you or your companies sought or obtained pertaining to your software (Am.
Compl., Ex. C, (7)(h)), including but not limited to any patent application that was rejected.
Response: Defendants can easily obtain any such documents from the Patent and
12

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 14 of


22
Trademark Office. Objection: Overly broad, vague and ambiguous.
25.

Please produce all documents and electronically stored information pertaining

to copyright registration you or your companies sought or obtained pertaining to your software
(Am. Compl., Ex. C, (7)(u)), including but not limited to any copyright registration
application that was rejected.
Response: Objection: Vague and ambiguous, relevancy, burdensome and oppressive and
Defendants can easily obtain these documents from copyright registration authorities.
26.

Please produce all documents and electronically stored information pertaining

to [t]he team on which [you] worked [that] had contracts directly with the intelligence
agencies at the military bases in Florida and the video showing the work (Am. Compl., Ex.
C, 28 (emphasis removed)).
Response: Objection: Much of this documentation is not in Plaintiffs custody, possession
or control. Notwithstanding this, any relevant non-privileged documents will be produced at a
mutually convenient date, time and place.
27.

Please produce all documents and electronically stored information pertaining

to the following statement in the Amended Complaint, Exhibit C, paragraph 28: The
contracting officers are out of those military bases, many of which are classified. I met and
worked with CIA officials in Florida at various military bases. However, I cannot identify here
the exact units stationed at those bases, which is classified information.
Objection: The request is overly broad, largely irrelevant and the documentation is not
largely in Plaintiffs possession, custody or control.
28.

Please produce all documents and electronically stored information pertaining

to the following statement in the Amended Complaint, Exhibit C, paragraph 29: We at


eTreppid and later BLXWARE did most of our work with units stationed at MacDill Air Force
13

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 15 of


22
Base and Eglin Air Force Base, whose identity is secret.
Response: Objection: This documentation is largely not in Plaintiffs possession, custody or
control. Notwithstanding this, any relevant non-privileged documents will be produced at a
mutually convenient date, time and place.
29.

Please produce a copy of the software loaded onto U.S. Special Operations

Command computers arising from the February 14, 2004 Order for Supplies or Services
referred to in the Amended Complaint, Exhibit C, paragraph 29 and attached to the Amended
Complaint as Exhibit 19 to Exhibit C.
Response: Objection: Any such additional relevant non-privileged documents are not in
Plaintiffs custody, possession or control.
30.

Please produce all documents and electronically stored information pertaining

to the following statement in the Amended Complaint, Exhibit C, paragraph 30: Most of the
payments for our work, the work I did for eTreppid and later BLXWARE, came out of the CIA
offices in Florida and SOCOM, the U.S. Special Operations Command of the U.S. military at
Mac[D]ill Air Force Base, Florida.
Response: Objection: Any such relevant non-privileged documents are not in Plaintiffs
custody, possession or control.
31.

Please produce all documents and electronically stored information pertaining

to demonstrations of your object detection software for the U.S. government referred to in the
Amended Complaint, paragraphs 121-24.
Response: Objection: Any such relevant non-privileged documents are not in Plaintiffs
possession, custody or control.
32.

Please produce all documents and electronically stored information pertaining

to videos feeds you or your companies obtained from Predator Drones stationed at Nellis Air
14

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 16 of


22
Force Base in Las Vegas, Nevada.
Response: Objection: Any such relevant non-privileged documents are not in Plaintiffs
custody, possession or control.
33.

Please produce all medical, psychiatric, psychological, and prescription records

pertaining to your health issues referred to in paragraph 13 of the Amended Complaint, or in the
alternative, sign releases Defendants will provide to you complying with the Health Insurance
Portability and Accountability Act (HIPAA) and applicable state law that authorize
Defendants to obtain your medical, psychiatric, psychological, and prescription records.
Response: Objection: Overly broad, vague and ambiguous and irrelevant.
34.

Please produce the neuropsychological testing to evaluate [your] cognitive

strengths and weaknesses referred to in the January 6, 2015 letter attached to the Amended
Complaint as Exhibit 10 to Exhibit C.
Response: Objection: Other than what has already been produced, such documentation is
not in Plaintiffs custody, possession or control.
35.

Please produce all documents and electronically stored information reflecting

your communications with Defendant Risen.


Response: Objection: Any such relevant documentation currently in Plaintiffs custody,
possession or control has already been produced in the initial disclosure documents.
36.

Please produce all documents and electronically stored information reflecting

communications pertaining to your software between you or your companies and the U.S.
government, including but not limited to: (i) data your software generated pertaining to Al
Jazeera television communicated to the U.S. government; (ii) data your software generated
pertaining to object detection communicated to the U.S. government; (iii) the hidden data [your
software] uncovered you or your companies communicated to the U.S. government (Am.
15

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 17 of


22
Compl., Ex. C, (7)(q)); and (iv) any communications in which [t]he data detected by [your]
software and technology did predict actual terrorist incidents and/or meetings in advance (Id.
(7)(j)).
Response: Objection: Any such non-privileged, relevant documents is not currently in
Plaintiffs custody, possession or control. Overly broad, burdensome and harassing.
37.

Please produce all contracts, including but not limited to nondisclosure

agreements, between you or your companies and the U.S. government.


Objections: Any such relevant non-privileged documents will be produced at a mutually
agreed date, time and place. Overly broad and vague and ambiguous.
38.

Please produce all documents and electronically stored information reflecting

communications pertaining to your software between you and White House officials in the
Office of the President or Office of the Vice President.
Response: Any such relevant non-privileged documents will be produced at a mutally
convenient date, time and place. Vague and ambiguous and relevancy objections as well.
39.

Please produce all documents and electronically stored information reflecting

communications pertaining to your software between you and members of Congress,


congressional staff, or congressional committee staff.
Response: Any such relevant non-privileged documents will be produced at a mutually
convenient date, time and place.
40.

Please produce all documents and electronically stored information reflecting

communications between you and Joseph Liberatore.


Response: Relevancy, overly broad, vague and ambiguous. Any such privileged relevant
documents will be produced at mutually convenient date, time and place.
41.

Please produce all documents and electronically stored information reflecting


16

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 18 of


22
communications between you and Paul L. Haraldsen.
Same objection as request 40 above.
42.

Please produce all documents and electronically stored information pertaining

to Jim Gibbons work in Congress on behalf of eTreppid Technologies, LLC or Warren


Trepps alleged bribery of Jim Gibbons.
Response: Objection: Relevancy, overly broad, ambiguous.
43.

Please produce all documents and electronically stored information pertaining

to the September 28, 1998 contribution agreement between you and Warren Trepp (Am.
Compl., Ex. C, (7)(u)), and any communications between you and Mr. Trepp.
Response: Same objection as request 42, above.
44.

Please produce all documents and electronically stored information pertaining

to any partnership or business between you and Steve Crisman, including but not limited to
software produced, and any communications between you and Mr. Crisman.
Response: Objection: Overly broad, vague and ambiguous and relevancy.
45.

Please produce all documents and electronically stored information pertaining

to the investigation by the Federal Bureau of Investigation into you or your software.
Response: Objection: Calls for a legal conclusion that there was an investigation. Any
such non-privileged, relevant information will be produced at a mutually convenient date, time
and place. This documentation, if it exists, is in the possession, custody and control of the FBI.
46.

Please produce all documents and electronically stored information pertaining to

the investigation by the U.S. Air Force Office of Special Investigations into you or your
software.
Response: Objection: Without admitting that there was any such investigation, which is illdefined and not established, objection on relevancy, overly broad, vague and ambiguous.
17

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 19 of


22
47.

Please produce all documents and electronically stored information reflecting

communications pertaining to your software between you and the Department of Justice.
Response: Objection: Any such documentation is privileged and work product assuming it
exists. Overly broad, vague and ambiguous and relevancy.
48.

Please produce all documents and electronically stored information pertaining

to your social media account pages pertaining to the allegations of the Amended Complaint or
any fact underlying the subject matter of this action, including but not limited to Twitter,
Facebook, LinkedIn, and Google Plus.
Response: Vague and ambiguous, relevancy and harassing and overly broad.
49.

Please produce all documents and electronically stored information reflecting

your communications with any person in which you sought a correction, retraction, or
threatened a civil action over a publication, article, or other news report about you.
Response: Objection: Overly broad, vague and ambiguous, and relevancy.
50.

Please produce all documents and electronically stored information reflecting

your communications with any person identified in your initial disclosures served upon
Defendants on April 24 and 27.
Response: Objection: Overly broad, vague and ambiguous and relevancy.
51.

Please produce all documents and electronically stored information reflecting

your communications with any person identified in Defendants initial disclosures served upon
you on April 24.
Response: Overly broad, burdensome, oppressive, harassing and vague and ambiguous.
52.

Please produce all documents and electronically stored information concerning

any income, salary, and benefits and the source of that income, salary, and benefits you received
from January 1, 1998 through the present, including but not limited to federal and state income
18

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 20 of


22
tax returns (including but not limited to all 1099 forms, W-2 forms, and schedules) for tax years
1998-2014 including but not limited to any estimated tax submissions for 2015, or in the
alternative as to tax returns, sign releases Defendants will provide to you complying with the
Internal Revenue Code and applicable state law that authorize Defendants to obtain your tax
returns.
Response: Overly broad, harassing, vague and ambiguous.
53.

Please produce all documents and electronically stored information evidencing

any payments pertaining to your software from the U.S. government to you or your companies.
Response: Objection: Overly broad, vague, ambiguous, and not relevant.
54.

Please produce copies of all your drivers licenses from January 1, 1998 to the

present.
Response: None and Objection: Overly broad, vague and ambiguous and relevancy.
55.

Please produce a copy of any lease you entered into to rent any premises in

Florida.
Response: Objection: Any such non-privileged documents will be produced at a mutually
convenient date, time and place.
56.

Please produce any resume you created or maintained from January 1, 1998 to

the present.
Response: Any such relevant, non-privileged documents will be produced at a mutually
convenient date, time and place.
57.

Please produce all voter registration forms you signed from January 1, 1998 to

the present (to the extent not already produced in your initial disclosures).
Response: Already produced. Any additional non-privileged relevant documents will be
produced at a mutually convenient date time and place.
19

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 21 of


22
Dated: June 1, 2015

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

20

Case 1:15-cv-20782-JEM Document 166-1 Entered on FLSD Docket 10/28/2015 Page 22 of


22
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 1st day of July, 2015, a true and correct copy of the
foregoing was served via email and U.S. Mail upon the following:
Sanford Lewis Bohrer
Brian Toth
Holland & Knight, LLP
Suite 3000
701 Brickell Ave
Miami, FL 33131
Email: sbohrer@hklaw.com
Email: brian.toth@hklaw.com
Laura R. Handman
Micah Ratner
Davis Wright Tremaine LLP
1919 Pennsylvania Ave., N.W., Suite 800
Washington D.C. 20006-3401
Email: laurahandman@dwt.com
Email: MicahRatner@dwt.com
Attorneys for Defendants

/s/ Larry Klayman


Larry Klayman, Esq.

21

Case 1:15-cv-20782-JEM Document 166-2 Entered on FLSD Docket 10/28/2015 Page 1 of 6

EXHIBIT 2

Case 1:15-cv-20782-JEM Document 166-2 Entered on FLSD Docket 10/28/2015 Page 2 of 6

Case 1:15-cv-20782-JEM Document 166-2 Entered on FLSD Docket 10/28/2015 Page 3 of 6

Case 1:15-cv-20782-JEM Document 166-2 Entered on FLSD Docket 10/28/2015 Page 4 of 6

Case 1:15-cv-20782-JEM Document 166-2 Entered on FLSD Docket 10/28/2015 Page 5 of 6

Case 1:15-cv-20782-JEM Document 166-2 Entered on FLSD Docket 10/28/2015 Page 6 of 6

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 1 of 53

EXHIBIT 3

1 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 2 of

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA

2
Case No. 15-20782-CIV-MARRA
3
DENNIS L. MONTGOMERY,
4
5
6
7
8

)
)
PLAINTIFF,
)
)
-v)
)
JAMES RISEN, ET AL.,
)
)
DEFENDANTS.
)
)
_____________________________)
)

Miami, Florida
October 16, 2015

9
10

TRANSCRIPT OF DISCOVERY HEARING PROCEEDINGS

11

BEFORE THE HONORABLE JONATHAN GOODMAN

12

UNITED STATES MAGISTRATE JUDGE

13
14

Appearances:

15

(On Page 2.)

16

Reporter
(561)514-3768

17
18
19
20
21
22
23
24
25

Stephen W. Franklin, RMR, CRR, CPE


Official Court Reporter
701 Clematis Street
West Palm Beach, Florida 33401
E-mail: SFranklinUSDC@aol.com

2 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 3 of

* * * * *

2
3

FOR THE PLAINTIFF


(By Telephone)

Larry E. Klayman, ESQ.


Klayman Law Firm
2520 Coral Way, Suite 2027
Miami, FL 33145

FOR THE DEFENDANTS


(By Telephone)

Laura R. Handman, ESQ., AND


Micah J. Ratner, ESQ.
Davis, Wright & Tremaine
1919 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20006

4
5
6
7
8
9
10

-and(Present in Court)

Sanford L. Bohrer, ESQ.


Holland & Knight
701 Brickell Avenue, Suite 3000
Miami, FL 33131

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

* * * * *

3 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 4 of

(Call to the order of the Court.)

2
3

THE COURTROOM DEPUTY:

Calling case

15-20782-CIVIL-MARTINEZ, Montgomery versus Risen, et al.

The Honorable Jonathan Goodman presiding.

THE COURT:

I'm hoping that the beeping noise that I just heard

indicates that we now have an additional counsel on the line,

and, if so, I think we've got everybody here.

9
10

Good afternoon, folks.

So you haven't missed anything.

We're just starting

now.

11

So let's start off with appearances.

12

First for the Plaintiff, I believe we have hopefully

13

counsel on the phone?

14
15

MR. KLAYMAN:

Yes, we do, Your Honor.

Larry

Klayman.

16

How are you today?

17

THE COURT:

18

Mr. Klayman, by the way, were you on television last

All right.

Good.

19

night on the Jimmy Kimmel show?

20

MR. KLAYMAN:

21

THE COURT:

22

there on the street.

23

on-the-street surprise ambush interviews, and there was a

24

fellow interviewed who looked significantly like you and had a

25

similar demeanor and a similar way of speaking, and I said, my

No, I don't think so, but --

There's a fellow who was interviewed


Jimmy Kimmel sometimes has one of these

4 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 5 of

gosh, is Mr. Klayman out there on Sunset Boulevard, in

Hollywood?

But apparently not.

All right.

MR. KLAYMAN:

I think it may have been me, Your

Honor.

interview to them a while back.

THE COURT:

MR. KLAYMAN:

THE COURT:

I actually was -- it may have been me.

11

THE COURT:

12

MR. KLAYMAN:

13

THE COURT:

the dog being like your wife or something, right?

16

THE COURT:

No, it's like my daughter.

Oh, my gosh, I was correct, that was

you.

18

MR. KLAYMAN:

I don't know.

Maybe I said if I had

had my dog I never would have gotten married.

20

22

Yes, that's me.

And, in fact, there was a reference to

MR. KLAYMAN:

21

Was there a dog on there?

Yes, you were holding a dog.

15

19

Yeah.

Oh.

MR. KLAYMAN:

17

I guess they held it.

Oh, really?

10

14

I did give an

THE COURT:

Maybe I --

There was some reference to a dog and a

wife.
So, yeah, I guess they do these interviews and they

23

hold them for, I don't know, weeks at a time, whenever they

24

have a need.

25

It wasn't particularly time sensitive.

MR. KLAYMAN:

They held it for months, months.

5 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 6 of

THE COURT:

Okay.

Who else do you have on the phone?

MS. HANDMAN:

My gosh.

Good.

You have Laura Handman and Micha

Ratner, from DC.

6
7

It was you, Mr. Klayman.

THE COURT:

All right.

Either of you on television

lately?

MS. HANDMAN:

THE COURT:

10

MR. BOHRER:

11

THE COURT:

Very well.

12

All right.

So happy Friday to everyone.

13

We're here for a discovery dispute, and I understand

No.

All right.

And here in court we have?

Sandy Bohrer, Your Honor.

14

this is a matter that the defense would like to bring to my

15

attention.

So I'm happy to hear what you have to say.

16

MS. HANDMAN:

17

We're here again today for sanctions for failure to

Thank you, Your Honor.

18

comply with paragraph 5 and 6 of the Court's post-hearing

19

discovery order of August 22nd.

20

37(b) and (e).

We seek sanctions under Rule

21

Your Honor will recall, the revelations made at the

22

August 21st hearing which Your Honor described in your denial

23

of the stay of the August 22nd order, that Montgomery, quote,

24

"recently and secretly turned over the software to the FBI

25

without keeping a copy, without advising Defendants of his

6 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 7 of

plan to do so, without advising this Court of his strategy,

and without seeking leave of court to, in effect, sequester

what could be the most important evidence in the entire case."

The Court ordered on August 22nd, in paragraph 6,

that by September 4, Plaintiff use, quote, "his self-described

right of continued access to nonclassified information,"

paren, "in relation to his turning over the subject software

to the FBI, to produce the software to defendants."

9
10
11
12

That was by September 4.


Plaintiff's counsel wrote to the FBI and AUSA Curtis
on August 26th quoting and attaching the order.
Then on September 8th, the FBI's general counsel

13

wrote back to Plaintiff's counsel, with a copy to Your Honor

14

and to Defendants' counsel.

15

Government was not aware of this case and the pending document

16

demand when they received the information, but, most

17

importantly, he said:

18

any information which would assist the Government in locating

19

and producing the software at issue in Montgomery v. Risen."

20

Not only did Mr. Baker say the

"Notably absent" -- I'm quoting -- "is

And then why?

Because what Plaintiffs gave the FBI

21

on August 19th, just two days before the hearing before Your

22

Honor on the software, was hard drives containing, according

23

to Mr. Baker, 51.6 million files amounting to 600 million

24

pages, which the Plaintiff claims had classified information

25

throughout.

7 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 8 of

Hence, Mr. Baker said, quote:

"This massive amount

of information means there is no reasonable way for the

Government to locate and provide the alleged software absent

specific instructions from the Plaintiff.

Mr. Baker then specified what was needed.

One was a

number or designation of the drive on which the software is

present.

creation date of the software.

the software.

10

Two, the file name of the software.

Three, the

Four, any other identifiers of

So we asked Mr. Klayman on September 21st whether

11

Plaintiff had provided that information requested, and to

12

please provide us the communications evidencing same, as well

13

as the prior communications referenced in Mr. Baker's letter,

14

all of which this Court ordered to be produced in paragraph 5

15

of the August 22nd order.

16

We did not get the software, which was supposed to

17

be produced by September 4, nor any evidence that the

18

information requested by the FBI in order to locate the

19

software have been provided, nor any communications with the

20

FBI.

21

And in the absence of any such communications

22

confirmation, I communicated on October 5 with Ted Schwartz,

23

the assistant -- the FBI's assistant general counsel, and he

24

advised that Mr. Klayman had sent an e-mail on September 24 --

25

that would be after our meet and confer -- to which the FBI

8 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 9 of

responded on October 1st, quote, "asking for more information

and clarification."

Mr. Schwartz said he could not provide the documents

absent a formal subpoena subject to the Touhy regulations but

said, quote, the FBI has no objection to Mr. Klayman providing

us a copy of the e-mail exchange.

So we asked Plaintiff's counsel, again as part of

the meet and confer on October 7th, for this exchange, and

advised them that the FBI had no objections.

We asked again

10

for the prior communications and confirmation that the

11

information necessary to locate the software had been

12

provided, and for the software itself.

13

We have gotten no response, no documents, no

14

software, even though clearly required by this Court's order

15

of August 22.

16

By giving the FBI this one and only copy of his own

17

software and not keeping a copy which had been the subject of

18

the specific discovery request since June 1, and which is, as

19

Your Honor observed, the critical evidence in the case, and

20

providing it to the FBI in a massive document dump that makes

21

it difficult, if not impossible, to retrieve, Plaintiff has

22

engaged, in our view, in deliberate spoliation, in defiance of

23

this Court's order to retrieve the software and provide the

24

communications with the FBI.

25

We were able to get, as Your Honor probably knows, a

9 of
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 10
53
1

brief extension of the discovery deadline, but it is now fast

approaching.

expert to examine the software and test whether it works or

not and do follow-up discovery.

It's one month away, and we need time for our

So we respectfully request that the Court order

Plaintiff to, one, produce by Monday all communications

regarding the location of Montgomery software, which is what

Your Honor ordered on August 22nd in the paragraph 5,

including, but not limited to, the July 28 letter agreement

10

with the FBI, the August 1 e-mail that are both referenced in

11

Mr. Baker's letter, the September 24 e-mail from Mr. Klayman,

12

and the FBI's October 1 response, which Mr. Schwartz advised

13

of, and any subsequent communications with the FBI.

14

We'd also ask Your Honor to order that if he has not

15

already done so, by Monday, he provide the FBI with all the

16

information the FBI has required in order to identify and

17

locate the software and provide documentation that that has

18

been done.

19
20
21

And, finally, we'd ask that they provide the


software by October 26.
We ask that if these requirements are not satisfied,

22

including provision of the software, even if the FBI has not

23

been able to return the software to the Plaintiff by that

24

time, due to Plaintiff's deliberate decision to not keep a

25

copy of its own software, but instead provide it to the FBI in

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 10


11 of
53

a manner that did not permit timely retrieval and production,

and causing extreme prejudice to Defendants' ability to defend

this case, we ask the Court to impose sanctions as provided

under Rule 37.

First, we would ask to dismiss the action with

prejudice.

make a finding that the software either did not exist, or did

not work, or, at a minimum, draw an adverse inference that the

software did not exist or did not work.

10

And if not dismissed, we would ask the Court to

We cited some authority in Footnote 17 in our

11

prehearing memorandum of August 4th, but we would be happy to

12

supplement that with additional authority if the Court

13

requires.

14

THE COURT:

15

Mr. Klayman?

16

MR. KLAYMAN:

17

First of all, I would say that we did comply with

Thank you.

Yes, Your Honor.

18

your order of August 22nd, 2015.

19

FBI on notice by August 26th that to look for the software, if

20

it existed.

21

drives, 600 million pages of documentation provided to the

22

FBI, that, in fact, software existed on that.

23

You ordered that we put the

We did not know whether or not, of the 47 hard

Secondly, the FBI advised in the letter from

24

Mr. Baker of September 8th that they were conducting, or they

25

would conduct a classification review.

Because we said if it

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 11


12 of
53

does exist it may be classified, and that's why we just

couldn't turn any software, even if it existed, over

willy-nilly.

Mr. Montgomery, but also for Defendants.

receive classified information, they could be in great legal

difficulty.

That would create liability, and not just for


If they were to

Now, that having been said, we have --

Mr. Montgomery has communicated with the FBI and has given it

information whereby it could make a concerted effort to find

10

that software to the best of his ability, if it exists.

11

However, this is an ongoing criminal investigation by the FBI,

12

and the information that's being provided to the FBI in terms

13

of it trying to be able to locate if any such software exists

14

and if it's classified, would be subject to work product in

15

the context of that criminal investigation.

16

We did get correspondence from Mr. Schwartz, but it

17

was never copied on Ms. Handman.

18

that.

19

vest as part of the criminal investigation.

20

prosecutor for the Justice Department, I have to respect the

21

investigatory privilege of the FBI, particularly when a

22

criminal matter is involved.

23

I don't know how she has

So I assume that the FBI was keeping this close to the


As a former

And, in fact, contrary to what was said in

24

Mr. Baker's letter, he's a very honest man, and I have the

25

highest regard for him, but he was not privy at the meeting at

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 12


13 of
53

the Miami field office of the FBI.

was.

An Assistant U.S. Attorney

So the information was provided second hand.


We filed affidavits on the record, both myself and

Ms. James, who was present, Dina James, paralegal, that, in

fact, we had told the FBI that there was a civil matter, and

that, for that reason, we would need access if required by

this Court to anything revolving around if software existed or

any other matter.

point in time.

10
11

said.

And the FBI and the AUSA agreed at that

That was not put in writing, but that was

But we did put it in an affidavit.


So we have been completely forthright in making an

12

attempt to find out if any software is there.

13

conducting a classification review.

14

important.

15

in the news these days that the FBI has some very significant

16

matters concerning a person called Hillary Clinton.

17

know, obviously their resources are being stretched thin.

18

The FBI is

These things are very

And we know, you know, in other matters that are

And, you

I mean, the documents here are 600 million pages.

19

That's huge in comparison to the 35,000 pages which went

20

missing in that very high profile case.

21

which they're moving with all due speed, and we are proceeding

22

in that regard.

23

So this is a matter

Now, I don't know if Your Honor had the

24

opportunity -- I assume you did, because you're a very

25

diligent jurist -- to look at our objection to your order, in

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 13


14 of
53

all due respect.

your way to require this to be produced without any basis.

But what we're saying is, and we're asking Judge Martinez to

take a look at it, and I hope that you can look at it, too, is

that, you know, it's ironic that they're making this issue of

the software, and it's strategic.

And we're not saying that you went out of

And I predicted that this was going to happen at an

early hearing, because their initial motion to dismiss was

based on the premise that everything that was published by

10

Mr. Risen came from prior publications in Playboy Magazine, in

11

Bloomberg News, and in Congressional testimony on the public

12

record.

13

inside the Government, contrary to a source note in his book,

14

which was meant to sell the book but was obviously false given

15

his testimony.

16

that he didn't have access to any software or confidential

17

information from the Government.

And Mr. Risen never relied on confidential sources

And he confirmed that when he was deposed,

18

And we put that in that objection.

19

So this is a red herring, and Ms. Handman has just

20

now confirmed that this is true, that they were trying -- they

21

were trying to create a Catch 22 with regard to the software

22

to try to get this case dismissed.

23

And the other thing that supports that is the fact

24

that on the last day, for them to have designated an expert to

25

review any such software -- which they could have done from

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 14


15 of
53

the start -- they didn't even give us anything more than the

name of the expert, in violation of federal rules on producing

information with regard to experts.

qualifications, prior testimony and everything like that.

You know, their prior

So the bottom line here, Your Honor, is -- and I

don't want to get too diverted, but the background's

important -- is that we should be allowed to have this

objection run its course.

Honor didn't -- not have all this information at the time that

It's a legitimate objection.

Your

10

Your Honor ruled initially.

11

turn software, which we don't know whether it exists or not,

12

over now, and the FBI's looking for it, and it's classified,

13

and communications over what's in those discs would moot out

14

the objection, could potentially expose classified

15

information, which would be helpful even to foreign interests

16

adverse to the United States, it would compromise an ongoing

17

criminal investigation by the FBI -- the communications are

18

technically work product here, because Mr. Montgomery is, in

19

fact, a witness for the FBI.

20

and that's why he got that immunity letter.

21

We took time to plot it out.

To

He's an informant for the FBI,

And for all of these reasons, Your Honor, we have

22

been in good faith, we respect you highly, we respect your

23

orders, but to turn over internal communications would

24

compromise a criminal investigation and possibly classified

25

information and could result in national security damage to

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 15


16 of
53

this country.

So that's our stance right now.

Let the FBI run its course.

It's moving --

Mr. Montgomery has participated in helping them, despite the

fact that he went back into the hospital after another stroke.

And let's see what the FBI comes up with.

moving with all due speed.

we have an extension on discovery.

yet.

10
11

I know they're

I don't think it's necessary that


It hasn't been requested

But if that's necessary, and Your Honor so rules and the

Judge so rules, then that's something we would respect.


But, again, they're not basing their case on any

12

software or classified information, you just need to look into

13

their motion to dismiss to tell you dismiss this case because

14

it all came from public sources.

15

So we respectfully request, Your Honor, to allow

16

that objection to be ruled upon, and in the meantime allow the

17

FBI to do its declassification review and to determine whether

18

or not that software is in there and whether or not it's

19

classified, if, indeed, the objection's not withheld.

20
21
22

THE COURT:

Now, Mr. Klayman, I have a couple of

follow-up questions for you.


I heard you say about two minutes ago that the

23

information is classified, and I seem to recall that at other

24

hearings you said to me, I don't know whether the

25

information's classified, Judge, I've never looked at it

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 16


17 of
53

myself, all I'm saying is it could be.

2
3

So did you perhaps misspeak this afternoon when you


said --

4
5

MR. KLAYMAN:
Okay.

Yeah, I think I misspoke in context.

Let me make that clear.


What I'm saying is that the -- I don't know whether,

if any such software exists, it's classified or not.

for the FBI to determine.

determination.

10

That's

And it must make that first initial

What I'm saying is that the communications that

11

Mr. Montgomery has had with the FBI since, pursuant to your

12

order, could lead potentially to disclosing classified

13

information about what's on those hard drives.

14

compromise the FBI's investigation, which is criminal, and

15

undoubtedly Defendants will make this public, and it could

16

compromise the national security of the United States.

17

that's why this is a very significant matter which can't be

18

taken lightly.

19

That could

And

And, in fact, you know, the Assistant U.S. Attorney,

20

Debra Curtis, has said to me orally, said, Larry, you know,

21

don't mix the civil with this criminal case.

22

to proceed criminally here.

23

that.

24

THE COURT:

25

MR. KLAYMAN:

I mean, we have

You know, we're concerned about

So when you -So, you know, it's -- and that's why I

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 17


18 of
53

point out, Your Honor, that at this stage, when the

Defendants, themselves, have rested their motion to dismiss on

the basis that Mr. Risen did not have access to the software,

therefore he couldn't have made his opinions that it was

fraudulent, and that his entire publication, "Pay Any Price,"

as concerns Mr. Montgomery was simply based on what was

already public in terms of prior newspaper articles and

Congressional testimony.

This -- and given the fact that they designated an

10

expert only by giving us his name on the last day, and could

11

have brought this issue up in front of the Court a lot sooner,

12

this is a strategy, a tactic, to put us in a Catch 22

13

situation, not just me -- I mean, not just Mr. Montgomery, but

14

the FBI and the Department of Justice, to try to get this case

15

dismissed.

16

It's kind of like heads, I win, tails you lose.

17

I mean, we didn't base this book on anything that

18

was confidential or classified.

19

when he testified.

20

Even Risen admitted to that

That's in the objection.

But now we're going to make an issue of it, because

21

if we can paint you into a corner, maybe we can get the

22

magistrate judge and/or the judge to rule that the case should

23

be dismissed if you don't turn over something that we never

24

even had anyway when we wrote the book or relied on.

25

See, and it's clever.

I predicted this to my

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 18


19 of
53

colleagues from day one, that Defendants would try this, okay,

and this obviously has come to be true.

THE COURT:

Well, Mr. Klayman, you've already made

that argument to me before, and I certainly appreciate your

creativity, but you haven't persuaded me of that, because I've

already noted that this particular software is, in fact,

critical evidence in the case, because this is a defamation

case, and one of your main burdens as the Plaintiff is to

prove -- it's your burden to prove the falsity of the

10

allegation.

11

And, quite frankly, it doesn't really matter all

12

that much whether Mr. Risen had access to this software or

13

not.

14

Let's assume for the sake of discussion that he just

15

wildly speculated that the software didn't work.

16

seen it, he had never had access to it, he had never spoken to

17

anybody about it.

18

book that said the software doesn't work.

19

that the software doesn't work, then it's a true statement.

20

So that's still part of your burden of proof.

21

He had never

He was just incredibly reckless and wrote a


But if it turns out

So in any event, you've made that argument before,

22

and, quite frankly, you didn't make much headway then, and

23

you're not making much headway now.

24
25

But setting that aside, when you told me earlier


today that Mr. Montgomery has communicated with the FBI and

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 19


20 of
53

gave the FBI information so that it could try to track down

the software amongst this massive amount of electronically

stored information that was given to the FBI, were those

communications in writing, or were they oral, or were they

both?

MR. KLAYMAN:

They were in writing.

They were

forwarded to the FBI, and what I also argued was, Your Honor,

that Mr. Montgomery did this as soon as he could, because he's

been ill.

He was in a hospital, had another stroke.

And --

10

but that this is part -- to review that information while an

11

objection is pending -- we are challenging this with the

12

Court -- you know, could potentially compromise national

13

security.

14

He is a witness for the FBI.

15

THE COURT:

He's an informant.

Have you seen this letter, Mr. Klayman,

16

the one that you said Mr. Montgomery sent to the FBI in order

17

to give it instructions on how to track down the software?

18
19
20
21
22

MR. KLAYMAN:

I've seen the e-mails.

We forwarded

the information that he provided to us to the FBI.


THE COURT:

So you have seen the written

communications that Mr. Montgomery sent to the FBI?


MR. KLAYMAN:

I have seen that, but I have -- it's

23

not classified.

24

information that would possibly be classified, and that's why

25

I think it's sensitive.

All I'm saying is it could lead a person to

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 20


21 of
53

THE COURT:

Well, it may be sensitive, Mr. Klayman.

There are a lot of documents in lawsuits that are, quote,

sensitive, and a lot of documents that people would prefer not

to turn over.

your explanation is "could" or "potentially," which, to me, is

simply speculation.

But the most important word that you said in

You have already reviewed these communications, so

you have the ability to tell me, as an officer of the court,

unequivocally whether or not Mr. Montgomery's communications

10

by e-mail to the FBI in which he gave instructions on where to

11

find this software contains classified information.

12

reviewed it.

13

Does it contain classified --

14

MR. KLAYMAN:

15

You've

I don't believe it does, okay, but I

wanted to give the FBI the opportunity to deal with that.

16

See, I had no knowledge that Mr. Schwartz had given

17

anything to Ms. Handman.

18

some information, and she was not copied on it.

19

told by the FBI that I could turn anything over to her.

20

not.

21

THE COURT:

22

MR. KLAYMAN:

23

in that regard.

I was copied on an e-mail asking for

Okay.

I was never
I was

So --

I'll swear to an affidavit under oath

So --

24

THE COURT:

25

Let me just ask a question of defense counsel.

Hang on just a minute.

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 21


22 of
53

Ms. Handman, you had made reference to, among the

documents that you were looking for, a written agreement

between Mr. Montgomery and the Government and the FBI, and I

think you even issued or mentioned a date.

5
6
7

What was that specific date, the date of the


agreement that you're looking to obtain?
MS. HANDMAN:

It's referenced in Mr. Baker's letter

on September 8th, and I believe it's July 28 was the

agreement, letter agreement.

He says:

"Based upon the

10

proffer and your client's representations that certain

11

relevant information on the drives was highly classified, the

12

Government agreed to grant your client production immunity for

13

these items as memorialized in a letter agreement dated

14

July 28, 2015."

15
16
17

He then goes on to say -- there's an e-mail.

He

quotes an e-mail on August 12th about the retrieval process.


And then what I also referenced -- and those are

18

both referenced in Mr. Baker's letter, which I was CC'd on, as

19

were you, Your Honor, and was put in the public records.

20

Then I followed up with Mr. Schwartz, the gentleman

21

who forwarded Mr. Baker's letter.

22

counsel for the FBI, and he said:

23

He's the assistant general

"Ms. Handman, we are unable to provide documents you

24

request at this time, as requests to the FBI for documents in

25

connection with civil litigations must be made in accordance

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 22


23 of
53

with the DOJ's Touhy regulations, also to the extent any

documents that you request are covered by the Privacy Act, you

would need to provide us with a waiver, a court order or any

basis for production.

"I can tell you that the FBI sent Mr. Klayman an

e-mail on October 1, 2015, asking for more information and

clarification in response to an e-mail he sent on

September 24, 2015.

providing you a copy of that e-mail exchange or the other

10

documents you seek," which are the ones that include those

11

two -- the letter agreement that I had mentioned and the

12

e-mail of August 12th.

13

The FBI has no objection to Mr. Klayman

And we told Mr. Klayman that the FBI had no

14

objection, and frankly it's only the Government which can

15

assert the classified privilege, and they've not sought to

16

intervene in this case at any point in time.

17

In fact, in Mr. Baker's letter, he specifically

18

says:

19

nor understood any obligation to conduct a classification

20

review of any of these materials for the purpose of any civil

21

litigation."

22

"However, the Government neither agrees to undertake

And Mr. Klayman mentioned that Ms. Curtis said don't

23

mix the civil with the criminal.

24

by putting the alleged software, the one and only copy of the

25

alleged software, in with whatever data dump they gave to the

Well, you did -- they did,

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 23


24 of
53

1
2

Government.
And I would remind the Court that back at the

August 21 hearing -- and we briefed this in our August 4

memoranda -- we cited the Nevada court which has specifically

held that the software was not classified.

a party to that case.

The Government was

And then when Mr. Montgomery did not produce the

software, it sanctioned him with a $2500-a-day sanction, which

ultimately resulted in a $25 million concession of judgment by

10

Mr. Montgomery, followed by bankruptcy that was never

11

discharged, and a reinstatement of the judgment and no

12

production of the software.

13
14
15

So it seems to us that this is another effort to


circumvent this.
And this so-called investigation that Mr. Mont --

16

Mr. Klayman mentioned in which he purports to be a

17

whistleblower I think is what the investigation is that

18

Mr. Klayman is referring to, he told a very similar story to

19

the Maricopa County Sheriff's Office, who paid him

20

approximately $250,000, and he gave 49 hard drives to them,

21

and ultimately the sheriff's office had two former NSA experts

22

review the hard drives, and they provided a two-page memo on

23

November 13th, 2014, which was recently introduced in the

24

court proceeding in Arizona before federal judge Snow.

25

And their conclusion was that Montgomery, quote, "is

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 24


25 of
53

a complete and total fraud," and they said, "which, among

other things, that the 45 hard drives, among other things,

contain a high volume of recordings of Al Jazeera television

network," and their conclusion was, "in summary, this letter

certifies that as to the best of Mr. Weebie's (phonetic) and

Mr. Drake's knowledge, none of the data examined reveals or

otherwise supports the assertion that the data contained on

the hard drive resulted from the clandestine collection and

processing of modern digital network communications and is,

10

instead, evidence of an outright and fraudulent con

11

perpetrated on the Government for person gain and cover."

12

And these hard drives that were subsequently seized

13

by the U.S. Marshals under order of Judge Snow and I believe

14

are also being reviewed by DOJ at this point.

15

And what makes this conclusion so remarkable is not

16

only may our software be at issue in those hard drives, but

17

the two NSA experts, Tom Drake and Kirk Weebie, are clients of

18

Mr. Klayman, who filed a whistleblower suit on their behalf on

19

August 20th of this year in DC federal court.

20

hardly denigrate their expertise or counter their conclusions.

21

So whether there is indeed -- whether, indeed, he is

And so he can

22

a whistleblower, whether, indeed, his software is classified,

23

et cetera, this has been a story that's been told for a long

24

time.

25

All we're asking for is the software.

We're asking

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 25


26 of
53

that Mr. Montgomery supply the communications that he's made

to the FBI to enable them to produce the software, and that

the software be produced promptly so that we can defend this

case that he's brought.

And whether we can't defend it because it's

classified or whether we can't defend it because he's

presented it in such a manner to the FBI, his one and only

copy of the software, that it's now irretrievable, is not our

problem.

Our problem is we can't defend the case, and that's

10

why we're asking that the sanctions outlined in Rule 37 be

11

awarded.

12

MR. KLAYMAN:

13

THE COURT:

14

MS. HANDMAN:

15

THE COURT:

16

MS. HANDMAN:

17

And he's the one that forwarded the letter from

Your Honor --

What is Mr. Schwartz's first name again?


Ted.

Ted?
Ted.

18

Mr. Baker to Your Honor and to myself.

19

contacted him.

20

MR. KLAYMAN:

21

THE COURT:

22

MR. KLAYMAN:

23

That's nice testimony.

24
25

And so that's why I

Your Honor.

Yes, sir.
May I respond to that?
Unfortunately, Ms. Handman

is not a witness in this case.


I take extreme issue with her characterization of

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 26


27 of
53

the facts.

those hard drives, and neither does Mr. Montgomery.

the FBI, on more than one occasion, parameters on how to try

to find it, and they're making that effort right now.

that should be allowed to run its course, along with our

objection to this entire line of inquiry.

I do not know whether any such software exists on


He gave

And

Secondly, with regard to Mr. Schwartz, I have no

knowledge -- in fact, Ms. Handman basically says two different

things.

One, she says that Schwartz tells her that he just

10

can't turn over communications because there's been no Touhy

11

request.

I know Your Honor knows what a Touhy request is.

12

THE COURT:

13

MR. KLAYMAN:

14

First he says he can't do that, and then she says

15

Yes, I do.
Okay.

And no Privacy Act request.

the exact opposite, he says, oh, turn it over.

16

THE COURT:

17

What she said is that Mr. Schwartz said "I," meaning

No, that's not what Ms. Handman said.

18

the FBI, can't turn it over because of Touhy regulations and

19

the Privacy Act requirements.

20

Mr. Klayman or Mr. Montgomery from doing it, and "I, on behalf

21

of the FBI, have no objection if they turn it over."

22

That's --

23

MR. KLAYMAN:

24

THE COURT:

25

be saying.

But there is nothing to prevent

But here's the --

That's what I understand Ms. Handman to

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 27


28 of
53

MR. KLAYMAN:

Okay.

I have -- I had -- I have

confusion as to what maybe -- I haven't had much sleep in the

last few weeks.

stuff, and . . .

I've had, like, four court hearings and

THE COURT:

MR. KLAYMAN:

THE COURT:

8
9

Well, let's just clarify.


All right.

Ms. Handman, wasn't that the point that

you were making?


MS. HANDMAN:

Absolutely, Your Honor.

And I have an

10

e-mail that I'd be happy to furnish counsel and yourself that

11

says exactly that.

12

MR. KLAYMAN:

13

THE COURT:

14

An e-mail from who, Ms. Handman?

15

MS. HANDMAN:

16

THE COURT:

17

MR. KLAYMAN:

Well, that's nice, Your Honor.

Whoa, whoa, wait.

Mr. Schwartz.

Okay.
I don't have any such e-mail.

18

Mr. Schwartz has never told me or Mr. Montgomery anything to

19

that effect.

20

I have to honor the FBI, you know, Your Honor.

21

just that, you know.

22

was a law enforcement officer.

23

FBI agents as clients.

24

them, and, you know, Director Comey, who we dealt with

25

directly on this case through Mr. Baker.

I was a Justice Department lawyer.


I work with the FBI.

Not
I

I've had

I value highly my relationship with

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 28


29 of
53

And I just can't willy-nilly turn things over

between the FBI and us.

of knowing -- assuming it's true.

assumption, you know.

contest --

THE COURT:

And I wasn't even given the courtesy


And that's a big

And I don't want to get into a

You think that -- you think Ms. Handman

is making up the fact that she received an e-mail from Ted

Schwartz?

She manufactured a bogus document?


MR. KLAYMAN:

No, no.

In the past -- I mean, she

10

did make up things in the beginning of the case.

11

up with Your Honor.

12

won't.

13
14

THE COURT:

I brought it

You said don't bring it up again, so I

All right.

Well, don't bring that up

issue.

15

Let's take it one step at a time.

16

Ms. Handman, the e-mail from Mr. Ted Schwartz,

17
18
19
20
21

what's date of that e-mail, please?


MS. HANDMAN:

I wrote him on October 5th, and he

responded on October 6th, at 10:55 a.m.


THE COURT:

And you have Mr. Schwartz's response

e-mail there?

22

MS. HANDMAN:

23

THE COURT:

24

MS. HANDMAN:

25

THE COURT:

Yes, I do.

Read it, please.


Attached to my e-mail to him.

Read it, please.

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 29


30 of
53

MS. HANDMAN:

"Ms. Handman, we are unable to provide the documents

you request at this time, as requests to the FBI for documents

in connection with civil litigation must be made in accordance

with DOJ's Touhy regulations, 28 CFR 1621, et seq.

Okay.

"Also, to the extent that any documents you request

are covered by the Privacy Act, 5 U.S.C. 552(a), you would

need to provide us with a waiver, court order or other basis

for production consistent with the Privacy Act.

10

"I can tell you that the FBI sent Mr. Klayman an

11

e-mail on October 1, 2015, asking for more information and

12

clarification in response to an e-mail he sent on

13

September 24, 2015.

14

providing you a copy of that e-mail exchange or the other

15

documents you seek."

16

The FBI has no objection to Mr. Klayman

And that references my e-mail below, where I ask for

17

that July 28 letter agreement and the August 12 e-mail, which

18

is subject to Your Honor's order of August 22, where you say

19

in paragraph 5:

20

Production 7 to Plaintiff, Plaintiff shall, by August 31,

21

2015, turn over all documents concerning this request" --

22

which was a request for documents as to the location of

23

software -- "which would now include documents related to the

24

disclosure and production of the subject software to the FBI."

25

"Concerning Defendants' request for

THE COURT:

All right.

So Ms. Handman, here's what

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 30


31 of
53

you're gonna do for me, please.

By Monday, I want you to, under a notice of filing,

file your October 5th, 2015, e-mail to Mr. Schwartz, and then

his October 6th response e-mail to you.

Now, here's what you're going to do, Mr. Klayman.

I realize that you objected to my earlier ruling.

realize that you filed a motion for a stay, which I denied,

and therefore, in the absence of a stay from Judge Martinez or

someone else, you need to comply.

10

So by next Tuesday, this coming Tuesday, you will be

11

filing with the Court and producing to Ms. Handman copies of

12

all of the correspondence between you and the FBI, you and

13

Ms. Curtis, Mr. Montgomery and the FBI, Mr. Montgomery and

14

Ms. Curtis, concerning Mr. Montgomery's turning over of

15

various ESI, hard drives and other material to the FBI.

16

So that will include all the documents that we've

17

been talking about today, the July 28th, 2015, letter

18

agreement, the September 24th e-mail from you, an August 12th,

19

2015, e-mail, an October 1st, 2015, e-mail, all of the e-mails

20

or other correspondence that Mr. Montgomery sent to the FBI in

21

an effort to try to answer Mr. Baker's request for additional

22

information so that the FBI could try to find, in that massive

23

amount of electronic discovery, the software at issue here.

24
25

In addition to that, by next Wednesday, you, on


Mr. Montgomery's behalf, or Mr. Montgomery himself, will be

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 31


32 of
53

sending the FBI, by e-mail, and in particular Mr. Schwartz, a

comprehensive set of instructions, the best available to

Mr. Montgomery, as to how to pinpoint the software at issue in

this case from the massive amount of material, the

51.6 million files totaling 600 million pages, that were

turned over to the FBI.

I realize that Mr. Montgomery may have already made

some effort in that regard in one or more e-mails, but I want

to make sure that he sends to the FBI the most detailed, most

10

comprehensive, most specific set of instructions and guidance

11

as to how to locate the software.

12

And if the answer is, gee, I really can't tell you

13

exactly how to pinpoint the software at issue in this civil

14

lawsuit from among the massive 51.6 million files turned over

15

to the FBI, then he shall so state in this written

16

communication, which must be sent by Wednesday.

17

that document, which will either be forwarded by you,

18

Mr. Klayman, or sent directly by Mr. Montgomery, will be filed

19

with the Court by the following day, which will be Thursday.

20

So that will be in the court file.

21

Copies of

In addition, by October 26, you will, in fact,

22

produce the software at issue in this case to the Defendants.

23

Now, I'm going to make sort of a practical

24

observation and a realistic comment, which is even though

25

you're now going to be under a specific court order to produce

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 32


33 of
53

that software October 26th, I'm not naive, and I think there's

a significant chance that, for whatever reason, or reasons,

you and/or Mr. Montgomery will not be complying with that

order.

And, therefore, in connection with the

Government's -- I'm sorry, with the Defendants' request for

sanctions.

8
9

This is not a mild request.

You're seeking,

Ms. Handman, the ultimate sanction of a dismissal with

10

prejudice, really based on a spoliation theory, or a violation

11

of a court order, or a combination of both.

12

not the kind of routine, garden variety discovery matter that

13

I typically consider without the benefit of memoranda.

14

asking me to issue a report and recommendation that this

15

entire case be dismissed because the software most likely will

16

not be timely produced to you, notwithstanding the order

17

requiring it.

18

But that's really

You're

So, therefore, I'm not going to be able to assess

19

that request simply based on a telephone hearing and a letter

20

or two.

21

So if you want me to seriously contemplate issuing

22

that kind of a drastic substantial order of either a dismissal

23

with prejudice or a finding that the software didn't exist or

24

never worked, or even an adverse inference, you're going to

25

have to do so in a specific written motion, and, more

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 33


34 of
53

importantly, with a supporting memorandum of law.

So my suggestion is that you get started on that

project now.

it, or one of your colleagues or maybe Mr. Toth, or maybe

other Holland & Knight lawyers, or maybe it will be drafted by

committee, I don't know.

that project underway, because the sooner that you get that to

me, the sooner I'll be able to make a ruling.

obviously I'm not going to be making a ruling simply based on,

10

number one, this phone call, and, number two, your motion and

11

memorandum.

12

adequately review Mr. Montgomery's response.

13
14

I don't know whether you're going to be drafting

But my suggestion is that you get

Because

I'm obviously going to have to need to see and

I'm sure Mr. Klayman will want a full and complete


opportunity to respond to your written motion and memorandum.

15

So you should probably all start whatever research

16

is necessary to get that underway so that we don't have to

17

unduly delay this case any further.

18

administrative order probably Monday summarizing the specific

19

rulings.

20

I'll be issuing a written

But just in case there's any confusion, Mr. Klayman,

21

do you have any questions about the specific rulings and the

22

deadlines that you and Montgomery have to comply with the

23

rulings made this afternoon?

24

MR. KLAYMAN:

25

We do await your written order, just in case we

No, Your Honor.

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 34


35 of
53

haven't written it down correctly.

But I do have a request here, and we would ask that

in terms of producing, as far as what Your Honor has ordered,

communications with the FBI, that we be able to produce that

and file it under seal.

security reasons and also for the health, safety and welfare

of my own client, who's been threatened by the Government, by

certain forces in the Government.

I don't want this out for national

We believe that what Risen wrote was the result of

10

trying to smear him, because he's been trying to come forward

11

for years.

12

about a year ago, long before this case was filed.

13

like to be able to file that under seal to protect him, with

14

Your Honor's permission.

15

In fact, we started this process with the FBI

THE COURT:

So I would

Well, based on what I've heard so far,

16

Mr. Klayman, we're just talking about some e-mails between

17

Ms. Handman and Mr. Schwartz, some e-mail from Mr. Montgomery

18

saying presumably here's where you would look for this

19

specific file and the software that you have.

20

me that any of these e-mails will contain any classified

21

information or information that, for some reason, needs to be

22

filed under seal.

23
24
25

MR. KLAYMAN:

Let me tell you what my concern is in

that regard.
THE COURT:

Doesn't strike

Sure, sure, go ahead.

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 35


36 of
53

MR. KLAYMAN:

there is a personal aspect of it.

Okay.

I don't mean to get personal here, but

Ms. Handman, as I said in an earlier hearing,

is very close with the Obama Administration and also very

close with Mrs. Clinton.

Honor may know who he is.

didn't bring it up -- at the earlier hearing.

8
9

Her husband is Harold Ickes.

Your

She made reference to him -- I

And I know from experience, having been with


Judicial Watch, that Mr. Ickes will do things that -- and I'm

10

trying to find a diplomatic way of doing it -- are very

11

destructive and very politically based, and could use

12

information to try to destroy my client.

13

And that kind of thing, this closeness with the

14

Clinton Administration and with the Obama Administration,

15

causes me great concern that they will use any information

16

that's out there in the public record to try to destroy my

17

client.

18
19
20
21
22

And I also have the national security concern,


so . . .
THE COURT:

So Mr. Klayman, I hear what you're

saying, and here's my observation.


I'm going to assume for the sake of discussion that

23

your perspective is correct.

24

Ms. Handman's husband does, in fact, have that motivation.

25

In other words, assume that

Even if true, that doesn't mean that the documents

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 36


37 of
53

that I'm requiring you to be filed would be the type of

document that he or any other political operative could

somehow use to unfairly intimidate, threaten or prejudice your

client.

innocuous.

The documents seem, on their face, to be fairly

So even if you perceive him to be a very

Machiavellian fellow who is sharpening his knives in order to

go after you or Mr. Montgomery, if the information itself is

innocuous, there's not much that he can do.

10
11
12

So I'm sensitive to your concern, and I don't want


to just, if I can use the phrase, willy-nilly minimize it.
But what I will do is I'll give you the opportunity

13

to review the materials yourself and take a good, hard look at

14

them, and if you, in good faith, believe that there is

15

something in these documents that compel an under-seal filing,

16

then I'll permit you to file a motion to file the materials

17

under seal in compliance with the local rule, which means you

18

have to explain the good grounds to file it under seal, and at

19

that point the documents will be filed under seal.

20

You will then --

21

MR. KLAYMAN:

22

THE COURT:

23

MR. KLAYMAN:

24

THE COURT:

25

I will do that.

Let me just finish.


Okay.

If you decide to do that -- and, by the

way, it doesn't have to be an all or nothing arrangement.

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 37


38 of
53

In other words, let's say for the sake of

discussion, Mr. Clayman, there are 12 pieces of paper that

you're filing, seven e-mails and three letters -- I'm just --

and two other memos.

12 pieces of paper are worthy of an under-seal filing.

would only try to file, or file a motion for an under-seal

presentation as to the two pages, not to everything.

you'll make a page-by-page good faith assessment.

So it may be that only two out of those


So you

So

But then, in addition to that, you will file a

10

courtesy copy of your motion to file under seal, as well as

11

the under-seal documents, to me.

12

in one of two ways.

13

to my chambers, or you can submit them to my e-file inbox,

14

which is Goodman@FLSD -- F, as in Frank -- FLSD.USCOURTS.GOV.

You can have them delivered

You can either have them hand delivered

15

And then I'll be able to review those materials

16

myself and make a determination as to whether or not your

17

motion to file under seal was well taken.

18

taken, the provisional under-seal filing will remain under

19

seal.

20

others, I'll issue an appropriate ruling to unseal some of

21

these pages, but not others.

22

your presentation, then I'll issue an order to unseal all of

23

them.

24
25

And if it is well

And if I agree with some of your conclusions but not

And if I disagree with all of

By the way, this is not a procedure unique to this


case.

I have several major cases where people are regularly

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 38


39 of
53

filing materials under seal, and when I think that perhaps an

under-seal filing is not such a slam dunk decision I follow

this procedure, and then at times I agree with the under-seal

filing, and at times not, and then the documents are unsealed.

5
6

All I would ask you to do, Mr. Klayman, is -- is to


take a reasonable, rational view of these materials.

And my suspicion is that at least some of them may

not be so classified, so confidential, so sensitive, that they

need to be filed under seal, because my -- my knee jerk

10

reaction, even though I haven't seen the documents, my knee

11

jerk reaction is that Mr. Schwartz, who's a high ranking FBI

12

attorney, would be hard pressed to be writing Ms. Klayman

13

(sic) to say, but it's -- we're perfectly okay if these

14

documents are disclosed by someone else, if those documents

15

contained classified information.

16

be hesitant about making that kind of a comment if the

17

documents were as sensitive as you suspect that they may be.

18

But in any event, that's the protocol that we will

I think he probably would

19

follow, and everybody has their homework assignment, and to

20

the extent there's any confusion, the written order

21

memorializing the rulings will be out to give you some

22

guidance.

23

So --

24

MS. HANDMAN:

25

I assume that we will get copies of the filings --

Judge Goodman, one other thing.

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 39


40 of
53

the motion to file under seal, as well as the unseal -- the --

all the documents so that we can review and respond.

that's not putting on the record.

restriction, other than obviously we won't make it public

until you've ruled on what is or is not sealed, but I

assume --

I mean,

It's not subject to any

THE COURT:

In other words, when Mr. Klayman --

First of all, he may not even file a motion to seal.

Well, sort of, but not exactly.

10

Maybe he'll review the documents and say, you know, on second

11

thought I may have overstated the sensitive nature, and maybe

12

they don't need to be filed under seal.

13

possibility.

14

So that's always a

But if he does decide to file it under seal, he'll

15

file a motion.

16

procedures, and it will have to be, you know, personally

17

hand-delivered over to the sealing clerk here in the Clerk of

18

the Court, and it will be a motion to file under seal, and

19

then the actual under-seal submissions will be attached.

20

so therefore that's filed under seal.

21

He'll have to follow the local rule

But, Mr. Klayman, you will serve counsel in the case

22

with a copy of the motion itself, not the under-seal

23

documents, but the motion.

24
25

And

Because the motion itself is not a sensitive


document.

The motion is merely the request for an under-seal

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 40


41 of
53

filing, along with the purported rationale for the under-seal

filing.

quoting the actual language from the documents under seal,

because that would let the cat out of the bag.

So obviously in the motion you're not going to be

You understand what I'm saying, right?

MR. KLAYMAN:

And I just have a --

MS. HANDMAN:

Judge Goodman, this is not -- I mean,

when things get -- you know, a motion is made under seal, the

10

parties get to see it.

11

see it.

12

THE COURT:

13

MS. HANDMAN:

14

I do.

It's the public that doesn't get to

No, no, no.


Unless you're seeking in-camera

review, ex parte in-camera review.

15

And, you know, I absolutely take issue, of course,

16

with everything he said about me and my husband, but I won't

17

clutter the record with that.

18

not be able to see it, as well.

19

able to see it, and, yes, we're bound not to disclose it while

20

we see it and it's under seal.

21

when there's a motion to file something under seal, that

22

doesn't exclude the parties to the litigation.

23

by the sealing until it's unsealed.

24
25

THE COURT:
on the circumstances.

But the notion that we should


Yes, the public may not be

But it's my understanding that

It depends, Ms. Handman.

They are bound

It all depends

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 41


42 of
53

I have cases all the time where people make an

under-seal filing where the actual under-seal submission is

not shown to the other side.

For example, let's say that somebody is arguing that

a document is protected by work product or attorney/client.

Obviously, they're not going to be submitting copies of a work

product document to the other side.

an in-camera ex parte examination by the judge.

it will be me.

Instead, it's subject to


In this case

And if I look at the material and decide that

10

it is privileged, then the under-seal submission remains under

11

seal, and the opposing party will not get to see it.

12

On the other hand, if I disagree with that theory,

13

then I'll make an appropriate ruling, and the documents are

14

unsealed, and then the opposing counsel gets to see it.

15

So in this particular --

16

MS. HANDMAN:

Your Honor, that's privilege material

17

that obviously, you know, you're trying to protect from the

18

other side seeing.

19

protective order in place, that it could be produced subject

20

to that, as well.

21

applying here, where -- as to the parties.

22

yes.

23

This is a motion to seal.

We have a

And I really don't see the same process


As to the public,

And I would point out if Mr. Klayman has it -- I

24

don't believe he's gotten classification -- clearance,

25

security clearance.

He says he doesn't have it, and that's

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 42


43 of
53

why he hasn't looked at anything.

think they could possibly be classified or subject to a

security clearance, and I don't know that he could provide it

to you without a security clearance.

So, by definition, I don't

So I really don't think it's the same process as

privilege, and we do have a protective order, and I am an

officer of the court, and I would observe any sealing

requirements that is in place.

THE COURT:

So Mr. Klayman, is it your position that

10

the under-seal filing should also preclude opposing counsel

11

from reviewing these materials, or just the public?

12
13

MR. KLAYMAN:

Well, subject to your review, Your

Honor.

14

I think you laid out a very fair and reasonable and

15

legally defensible procedure here.

16

see it first.

17

I'd like you to be able to

Now, I do have concerns about it being turned over

18

before you have a chance to take a look at it.

19

to tell you, I mean, Mrs. Handman started laughing when I made

20

reference to Harold Ickes, her husband.

21

twice in the 1990s, and it was believed -- and I certainly

22

believe it based on the information I got -- that he

23

intimidated witnesses during that period of Clinton scandals.

24

And that's why the court, Judge Lambert, allowed me to depose

25

him.

And I've got

But I deposed him

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 43


44 of
53

In fact, he was ordered back at a deposition, when

he left the deposition room claiming he was going to defecate

on my carpet.

Okay.

THE COURT:

6
7

So I have -I think we're getting a little far

afield here, Mr. Klayman.


MR. KLAYMAN:

Okay.

I have serious concerns, and I

want an order -- I would ask the Court to make an order to

Ms. Handman not to share this information with her husband.

10

MS. HANDMAN:

Believe me, he has no interest in it.

11

MR. KLAYMAN:

Oh, I believe he has a great interest,

12

because Mr. Montgomery does have information about both the

13

Obama Administration and Hillary Clinton, okay, and you are

14

both very close with her.

15

THE COURT:

16

It's now 5:30 on a Friday afternoon, and the hearing

Listen, folks, folks, I'm sorry.

17

is about to end.

18

then I asked if there were any questions about the ruling.

In fact, I thought the hearing did end, and

19

So when you file --

20

First of all, who knows whether you're going to even

21

want to file all or some of these documents under seal.

22

may have second thoughts.

23

all under seal, you'll file the appropriate motion, you'll

24

attach the documents to be filed under seal.

25

Ms. Handman with a copy of the motion, as well as copies of

You

But if you do want to file some or

You'll serve

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 44


45 of
53

the under-seal documents.

2
3

Ms. Handman will not be able to provide or share or


discuss those documents with her husband.

And then, in addition, you will serve me with a

courtesy copy of the under-seal documents.

you the two alternatives for providing courtesy copies to me.

And then I will decide whether or not an under-seal

I've already told

submission is possible.

Based on what you've told me so far, Mr. Klayman, it

10

sounds like you have a significant hurdle to clear to convince

11

me, because these documents sound to be relatively innocuous,

12

and the mere fact that you or Mr. Montgomery would prefer that

13

they not be filed, or that you (sic) might be potentially

14

embarrassing, or they're, quote, sensitive, whatever that

15

means, typically those are not sufficient reasons for an

16

under-seal filing.

17

So that's my general orientation.

18

So that's the ruling.

19

what's going to be happening in the next few days.

20
21

I think everybody understands

So we will be in recess, and I wish everybody a good


weekend.

Take care.

By, now.

22

MR. KLAYMAN:

Thank you, Your Honor.

23

MS. HANDMAN:

Thank you, Your Honor.

24
25

(Proceedings concluded.)
* * * * *

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 45


46 of
53

* * * * *

I N D E X

Oral Argument

* * * * *

E X H I B I T S

(None.)

* * * * *

CERTIFICATE

9
10

I, Stephen W. Franklin, Registered Merit Reporter, and

11

Certified Realtime Reporter, certify that the foregoing is a

12

correct transcript from the record of proceedings in the

13

above-entitled matter.

14

Dated this 22nd day of OCTOBER, 2015.

15
16
17
18
19
20
21
22
23
24
25

/s/Stephen W. Franklin
_____________________________
Stephen W. Franklin, RMR, CRR

46

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 47 of


33131 [1] 2/10
admitted [1] 17/18
argument [3] 18/4 18/21 background's [1] 14/6
53
33145 [1] 2/4
bag [1] 40/4
adverse [3] 10/8 14/16
45/3
MR. BOHRER: [1] 5/9
MR. KLAYMAN: [37]
MS. HANDMAN: [18]
THE COURT: [49]
THE COURTROOM
DEPUTY: [1] 3/1

$
$25 [1] 23/9
$25 million [1] 23/9
$250,000 [1] 23/20
$2500 [1] 23/8
$2500-a-day [1] 23/8

-and [1] 2/8


-v [1] 1/5

/
/s/Stephen [1] 45/16

1
10:55 a.m [1] 28/19
12 [3] 29/17 37/2 37/5
12th [3] 21/16 22/12
30/18
13th [1] 23/23
15-20782-CIV-MARRA
[1] 1/2
15-20782-CIVIL-MART
INEZ [1] 3/3
16 [1] 1/8
1621 [1] 29/5
17 [1] 10/10
1919 [1] 2/6
1990s [1] 42/21
19th [1] 6/21
1st [2] 8/1 30/19

33401 [1] 1/17


35,000 [1] 12/19
37 [3] 5/20 10/4 25/10
3768 [1] 1/16

4
45 [1] 24/2
47 [1] 10/20
49 [1] 23/20
4th [1] 10/11

5
51.6 million [3] 6/23
31/5 31/14
514-3768 [1] 1/16
552 [1] 29/7
561 [1] 1/16
5:30 [1] 43/16
5th [2] 28/18 30/3

6
600 million [4] 6/23
10/21 12/18 31/5
6th [2] 28/19 30/4

7
701 [2] 1/17 2/9
7th [1] 8/8

8
800 [1] 2/7
8th [3] 6/12 10/24 21/8

a.m [1] 28/19


ability [3] 10/2 11/10
20/8
able [12] 8/25 9/23
11/13 32/18 33/8 34/4
2
34/13 37/15 40/18 40/19
20006 [1] 2/7
42/15 44/2
2014 [1] 23/23
above [1] 45/13
2015 [13] 1/8 10/18
above-entitled [1] 45/13
21/14 22/6 22/8 29/11
absence [2] 7/21 30/8
29/13 29/21 30/3 30/17
absent [3] 6/17 7/3 8/4
30/19 30/19 45/14
absolutely [2] 27/9
2027 [1] 2/3
40/15
20th [1] 24/19
access [6] 6/6 12/6 13/16
21 [1] 23/3
17/3 18/12 18/16
21st [2] 5/22 7/10
accordance [2] 21/25
22 [4] 8/15 13/21 17/12
29/4
29/18
according [1] 6/22
22nd [7] 5/19 5/23 6/4
Act [5] 22/2 26/13 26/19
7/15 9/8 10/18 45/14
29/7 29/9
24 [4] 7/24 9/11 22/8
action [1] 10/5
29/13
actual [3] 39/19 40/3
24th [1] 30/18
41/2
2520 [1] 2/3
actually [1] 4/5
26 [2] 9/20 31/21
addition [4] 30/24 31/21
26th [3] 6/11 10/19 32/1
37/9 44/4
28 [5] 9/9 21/8 21/14
additional [3] 3/7 10/12
29/5 29/17
30/21
28th [1] 30/17
adequately [1] 33/12
Administration [4] 35/4
3
35/14 35/14 43/13
3000 [1] 2/9
administrative [1] 33/18
31 [1] 29/20

32/24
advised [4] 7/24 8/9
9/12 10/23
advising [2] 5/25 6/1
affidavit [2] 12/10 20/22
affidavits [1] 12/3
afield [1] 43/6
after [3] 7/25 15/5 36/8
afternoon [4] 3/5 16/2
33/23 43/16
again [6] 5/17 8/7 8/9
15/11 25/13 28/11
agents [1] 27/23
ago [2] 15/22 34/12
agree [2] 37/19 38/3
agreed [2] 12/8 21/12
agreement [9] 9/9 21/2
21/6 21/9 21/9 21/13
22/11 29/17 30/18
agrees [1] 22/18
ahead [1] 34/25
al [3] 1/6 3/3 24/3
allegation [1] 18/10
alleged [3] 7/3 22/24
22/25
allow [2] 15/15 15/16
allowed [3] 14/7 26/5
42/24
along [2] 26/5 40/1
already [7] 9/15 17/7
18/3 18/6 20/7 31/7 44/5
also [11] 9/14 11/4 19/7
21/17 22/1 24/14 29/6
34/6 35/4 35/18 42/10
alternatives [1] 44/6
always [1] 39/12
am [1] 42/6
ambush [1] 3/23
among [4] 21/1 24/1
24/2 31/14
amongst [1] 19/2
amount [4] 7/1 19/2
30/23 31/4
amounting [1] 6/23
and/or [2] 17/22 32/3
another [3] 15/5 19/9
23/13
answer [2] 30/21 31/12
any [38]
anybody [1] 18/17
anything [8] 3/9 12/7
14/1 17/17 20/17 20/19
27/18 42/1
anyway [1] 17/24
aol.com [1] 1/18
apparently [1] 4/2
appearances [2] 1/14
3/11
applying [1] 41/21
appreciate [1] 18/4
approaching [1] 9/2
appropriate [3] 37/20
41/13 43/23
approximately [1] 23/20
argued [1] 19/7
arguing [1] 41/4

Arizona [1] 23/24


around [1] 12/7
arrangement [1] 36/25
articles [1] 17/7
aside [1] 18/24
ask [11] 9/14 9/19 9/21
10/3 10/5 10/6 20/25
29/16 34/2 38/5 43/8
asked [4] 7/10 8/7 8/9
43/18
asking [9] 8/1 13/3
20/17 22/6 24/25 24/25
25/10 29/11 32/14
aspect [1] 35/2
assert [1] 22/15
assertion [1] 24/7
assess [1] 32/18
assessment [1] 37/8
assignment [1] 38/19
assist [1] 6/18
assistant [5] 7/23 7/23
12/1 16/19 21/21
assume [7] 11/18 12/24
18/14 35/22 35/23 38/25
39/6
assuming [1] 28/3
assumption [1] 28/4
attach [1] 43/24
attached [2] 28/24 39/19
attaching [1] 6/11
attempt [1] 12/12
attention [1] 5/15
attorney [4] 12/1 16/19
38/12 41/5
attorney/client [1] 41/5
August [22]
August 1 [1] 9/10
August 12 [1] 29/17
August 12th [3] 21/16
22/12 30/18
August 19th [1] 6/21
August 20th [1] 24/19
August 21 [1] 23/3
August 21st [1] 5/22
August 22 [2] 8/15
29/18
August 22nd [6] 5/19
5/23 6/4 7/15 9/8 10/18
August 26th [2] 6/11
10/19
August 31 [1] 29/20
August 4 [1] 23/3
August 4th [1] 10/11
AUSA [2] 6/10 12/8
authority [2] 10/10
10/12
available [1] 31/2
Avenue [2] 2/6 2/9
await [1] 33/25
awarded [1] 25/11
aware [1] 6/15
away [1] 9/2

B
back [5] 4/6 6/13 15/5
23/2 43/1

Baker [7] 6/14 6/23 7/1


7/5 10/24 25/18 27/25
Baker's [8] 7/13 9/11
11/24 21/7 21/18 21/21
22/17 30/21
bankruptcy [1] 23/10
base [1] 17/17
based [10] 13/9 17/6
21/9 32/10 32/19 33/9
34/15 35/11 42/22 44/9
basically [1] 26/8
basing [1] 15/11
basis [4] 13/2 17/3 22/4
29/8
Beach [1] 1/17
because [23]
beeping [1] 3/6
before [8] 1/11 6/21
6/21 18/4 18/21 23/24
34/12 42/18
beginning [1] 28/10
behalf [3] 24/18 26/20
30/25
being [5] 4/14 11/12
12/17 24/14 42/17
believe [10] 3/12 20/14
21/8 24/13 34/9 36/14
41/24 42/22 43/10 43/11
believed [1] 42/21
below [1] 29/16
benefit [1] 32/13
best [3] 11/10 24/5 31/2
between [4] 21/3 28/2
30/12 34/16
big [1] 28/3
Bloomberg [1] 13/11
bogus [1] 28/8
Bohrer [2] 2/8 5/10
book [5] 13/13 13/14
17/17 17/24 18/18
both [7] 9/10 12/3 19/5
21/18 32/11 43/12 43/14
bottom [1] 14/5
Boulevard [1] 4/1
bound [2] 40/19 40/22
Brickell [1] 2/9
brief [1] 9/1
briefed [1] 23/3
bring [4] 5/14 28/11
28/13 35/7
brought [3] 17/11 25/4
28/10
burden [2] 18/9 18/20
burdens [1] 18/8

C
called [2] 12/16 23/15
Calling [1] 3/2
came [2] 13/10 15/14
camera [3] 40/13 40/14
41/8
can't [9] 16/17 25/5 25/6
25/9 26/10 26/14 26/18
28/1 31/12
care [1] 44/21
carpet [1] 43/3

47

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 48 of


Coral [1] 2/3
communication [1]
defense [2] 5/14 20/25 documentation [2] 9/17
C
53
case [32]
cases [2] 37/25 41/1
cat [1] 40/4
Catch [2] 13/21 17/12
causes [1] 35/15
causing [1] 10/2
CC'd [1] 21/18
certain [2] 21/10 34/8
certainly [2] 18/4 42/21
CERTIFICATE [1]
45/8
Certified [1] 45/11
certifies [1] 24/5
certify [1] 45/11
cetera [1] 24/23
CFR [1] 29/5
challenging [1] 19/11
chambers [1] 37/13
chance [2] 32/2 42/18
characterization [1]
25/25
circumstances [1] 40/25
circumvent [1] 23/14
cited [2] 10/10 23/4
CIV [1] 1/2
civil [8] 3/3 12/5 16/21
21/25 22/20 22/23 29/4
31/13
claiming [1] 43/2
claims [1] 6/24
clandestine [1] 24/8
clarification [3] 8/2 22/7
29/12
clarify [1] 27/5
classification [4] 10/25
12/13 22/19 41/24
classified [27]
Clayman [1] 37/2
clear [2] 16/5 44/10
clearance [4] 41/24
41/25 42/3 42/4
clearly [1] 8/14
Clematis [1] 1/17
clerk [2] 39/17 39/17
clever [1] 17/25
client [6] 21/12 34/7
35/12 35/17 36/4 41/5
client's [1] 21/10
clients [2] 24/17 27/23
Clinton [5] 12/16 35/5
35/14 42/23 43/13
close [4] 11/18 35/4 35/5
43/14
closeness [1] 35/13
clutter [1] 40/17
colleagues [2] 18/1 33/4
collection [1] 24/8
combination [1] 32/11
comes [1] 15/6
Comey [1] 27/24
coming [1] 30/10
comment [2] 31/24
38/16
committee [1] 33/6
communicated [3] 7/22
11/8 18/25

corner [1] 17/21


31/16
correct [3] 4/16 35/23
communications [20]
45/12
comparison [1] 12/19
correctly [1] 34/1
compel [1] 36/15
complete [2] 24/1 33/13 correspondence [3]
11/16 30/12 30/20
completely [1] 12/11
couldn't [2] 11/2 17/4
compliance [1] 36/17
comply [4] 5/18 10/17 counsel [14] 3/7 3/13
6/10 6/12 6/13 6/14 7/23
30/9 33/22
8/7 20/25 21/22 27/10
complying [1] 32/3
comprehensive [2] 31/2 39/21 41/14 42/10
counter [1] 24/20
31/10
compromise [5] 14/16 country [1] 15/1
14/24 16/14 16/16 19/12 County [1] 23/19
couple [1] 15/20
con [1] 24/10
concern [4] 34/23 35/15 course [4] 14/8 15/3
26/5 40/15
35/18 36/10
court [33]
concerned [1] 16/22
Court's [3] 5/18 8/14
concerning [4] 12/16
8/23
29/19 29/21 30/14
concerns [3] 17/6 42/17 courtesy [4] 28/2 37/10
44/5 44/6
43/7
cover [1] 24/11
concerted [1] 11/9
covered [2] 22/2 29/7
concession [1] 23/9
CPE [1] 1/16
concluded [1] 44/24
create [2] 11/3 13/21
conclusion [3] 23/25
creation [1] 7/8
24/4 24/15
creativity [1] 18/5
conclusions [2] 24/20
criminal [9] 11/11 11/15
37/19
conduct [2] 10/25 22/19 11/19 11/22 14/17 14/24
16/14 16/21 22/23
conducting [2] 10/24
criminally [1] 16/22
12/13
critical [2] 8/19 18/7
confer [2] 7/25 8/8
confidential [4] 13/12 CRR [2] 1/16 45/17
Curtis [5] 6/10 16/20
13/16 17/18 38/8
22/22 30/13 30/14
confirmation [2] 7/22
8/10
D
confirmed [2] 13/15
damage [1] 14/25
13/20
confusion [3] 27/2 33/20 data [3] 22/25 24/6 24/7
date [5] 7/8 21/4 21/5
38/20
Congressional [2] 13/11 21/5 28/17
dated [2] 21/13 45/14
17/8
daughter [1] 4/15
connection [3] 21/25
Davis [1] 2/6
29/4 32/5
days [3] 6/21 12/15
consider [1] 32/13
44/19
consistent [1] 29/9
DC [3] 2/7 5/5 24/19
contacted [1] 25/19
contain [3] 20/13 24/3 deadline [1] 9/1
deadlines [1] 33/22
34/20
contained [2] 24/7 38/15 deal [1] 20/15
dealt [1] 27/24
containing [1] 6/22
Debra [1] 16/20
contains [1] 20/11
contemplate [1] 32/21 decide [4] 36/24 39/14
41/9 44/7
contest [1] 28/5
context [2] 11/15 16/4 decision [2] 9/24 38/2
declassification [1]
continued [1] 6/6
contrary [2] 11/23 13/13 15/17
defamation [1] 18/7
convince [1] 44/10
copied [3] 11/17 20/17 defecate [1] 43/2
defend [5] 10/2 25/3
20/18
25/5 25/6 25/9
copies [6] 30/11 31/16
defendants [9] 1/7 2/5
38/25 41/6 43/25 44/6
copy [14] 5/25 6/13 8/6 5/25 6/8 11/4 16/15 17/2
18/1 31/22
8/16 8/17 9/25 22/9
22/24 25/8 29/14 37/10 Defendants' [4] 6/14
10/2 29/19 32/6
39/22 43/25 44/5

defensible [1] 42/15


defiance [1] 8/22
definition [1] 42/1
delay [1] 33/17
deliberate [2] 8/22 9/24
delivered [3] 37/11
37/12 39/17
demand [1] 6/16
demeanor [1] 3/25
denial [1] 5/22
denied [1] 30/7
denigrate [1] 24/20
DENNIS [1] 1/3
Department [3] 11/20
17/14 27/21
depends [2] 40/24 40/24
depose [1] 42/24
deposed [2] 13/15 42/20
deposition [2] 43/1 43/2
described [2] 5/22 6/5
designated [2] 13/24
17/9
designation [1] 7/6
despite [1] 15/4
destroy [2] 35/12 35/16
destructive [1] 35/11
detailed [1] 31/9
determination [2] 16/9
37/16
determine [2] 15/17
16/8
didn't [8] 13/16 14/1
14/9 17/17 18/15 18/22
32/23 35/7
different [1] 26/8
difficult [1] 8/21
difficulty [1] 11/6
digital [1] 24/9
diligent [1] 12/25
Dina [1] 12/4
diplomatic [1] 35/10
directly [2] 27/25 31/18
Director [1] 27/24
disagree [2] 37/21 41/12
discharged [1] 23/11
disclose [1] 40/19
disclosed [1] 38/14
disclosing [1] 16/12
disclosure [1] 29/24
discovery [9] 1/10 5/13
5/19 8/18 9/1 9/4 15/8
30/23 32/12
discs [1] 14/13
discuss [1] 44/3
discussion [3] 18/14
35/22 37/2
dismiss [5] 10/5 13/8
15/13 15/13 17/2
dismissal [2] 32/9 32/22
dismissed [5] 10/6 13/22
17/15 17/23 32/15
dispute [1] 5/13
DISTRICT [2] 1/1 1/1
diverted [1] 14/6
document [8] 6/15 8/20
28/8 31/17 36/2 39/25
41/5 41/7

10/21
documents [39]
does [7] 11/1 20/13
20/14 26/2 35/24 39/14
43/12
doesn't [9] 18/11 18/18
18/19 34/19 35/25 36/25
40/10 40/22 41/25
dog [5] 4/10 4/11 4/14
4/19 4/20
doing [2] 26/20 35/10
DOJ [1] 24/14
DOJ's [2] 22/1 29/5
don't [30]
done [3] 9/15 9/18 13/25
down [3] 19/1 19/17
34/1
drafted [1] 33/5
drafting [1] 33/3
Drake [1] 24/17
Drake's [1] 24/6
drastic [1] 32/22
draw [1] 10/8
drive [2] 7/6 24/8
drives [11] 6/22 10/21
16/13 21/11 23/20 23/22
24/2 24/12 24/16 26/2
30/15
due [4] 9/24 12/21 13/1
15/7
dump [2] 8/20 22/25
dunk [1] 38/2
during [1] 42/23

E
e-file [1] 37/13
e-mail [33]
e-mails [6] 19/18 30/19
31/8 34/16 34/20 37/3
earlier [4] 18/24 30/6
35/3 35/7
early [1] 13/8
effect [2] 6/2 27/19
effort [5] 11/9 23/13
26/4 30/21 31/8
either [5] 5/6 10/7 31/17
32/22 37/12
electronic [1] 30/23
electronically [1] 19/2
else [3] 5/3 30/9 38/14
embarrassing [1] 44/14
enable [1] 25/2
end [2] 43/17 43/17
enforcement [1] 27/22
engaged [1] 8/22
entire [4] 6/3 17/5 26/6
32/15
entitled [1] 45/13
ESI [1] 30/15
ESQ [4] 2/2 2/5 2/5 2/8
et [4] 1/6 3/3 24/23 29/5
et cetera [1] 24/23
even [16]
event [2] 18/21 38/18
everybody [4] 3/8 38/19
44/18 44/20
everyone [1] 5/12

48

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 49 of


38/1 38/2 38/4 40/1 40/2 14/22 36/13 36/14 36/18 5/17 12/18 14/5 14/18
informant [2] 14/19
E
53

19/14
information [42]
information's [1] 15/25
initial [2] 13/8 16/8
initially [1] 14/10
innocuous [3] 36/5 36/9
44/11
inquiry [1] 26/6
inside [1] 13/13
instead [3] 9/25 24/10
41/7
instructions [5] 7/4
19/17 20/10 31/2 31/10
interest [2] 43/10 43/11
interests [1] 14/15
internal [1] 14/23
intervene [1] 22/16
interview [1] 4/6
interviewed [2] 3/21
3/24
interviews [2] 3/23 4/22
intimidate [1] 36/3
H
intimidated [1] 42/23
hand [4] 12/2 37/12
introduced [1] 23/23
39/17 41/12
investigation [8] 11/11
hand-delivered [1]
11/15 11/19 14/17 14/24
39/17
16/14 23/15 23/17
Handman [26]
investigatory [1] 11/21
Handman's [1] 35/24
involved [1] 11/22
Hang [1] 20/24
ironic [1] 13/5
happen [1] 13/7
irretrievable [1] 25/8
happening [1] 44/19
issue [15] 6/19 13/5
happy [4] 5/12 5/15
17/11 17/20 24/16 25/25
10/11 27/10
28/14 30/23 31/3 31/13
I
hard [13] 6/22 10/20
31/22 32/14 37/20 37/22
16/13 23/20 23/22 24/2 I'd [2] 27/10 42/15
40/15
24/8 24/12 24/16 26/2
I'll [9] 20/22 33/8 33/17 issued [1] 21/4
F
36/12 36/16 37/15 37/20 issuing [2] 32/21 33/17
30/15 36/13 38/12
face [1] 36/4
hardly [1] 24/20
37/22 41/13
it's [33]
fact [19]
Harold [2] 35/5 42/20 I'm [21]
items [1] 21/13
facts [1] 26/1
hasn't [2] 15/8 42/1
I've [8] 15/25 18/5 19/18 itself [4] 8/12 36/8 39/22
failure [1] 5/17
haven't [5] 3/9 18/5 27/2 27/3 27/22 34/15 42/18 39/24
fair [1] 42/14
34/1 38/10
44/5
fairly [1] 36/4
J
Ickes [3] 35/5 35/9
having [2] 11/7 35/8
faith [3] 14/22 36/14
he'll [3] 39/10 39/14
42/20
JAMES [3] 1/6 12/4
37/8
39/15
identifiers [1] 7/8
12/4
false [1] 13/14
he's [11] 11/24 14/19
identify [1] 9/16
Jazeera [1] 24/3
falsity [1] 18/9
G
19/8 19/14 21/21 25/1
ill [1] 19/9
jerk [2] 38/9 38/11
far [4] 34/3 34/15 43/5
gain [1] 24/11
25/4 25/6 25/17 34/10
immunity [2] 14/20
Jimmy [2] 3/19 3/22
44/9
garden [1] 32/12
41/24
21/12
JONATHAN [2] 1/11
fast [1] 9/1
gave [6] 6/20 19/1 20/10 heads [1] 17/16
important [4] 6/3 12/14 3/4
FBI [82]
22/25 23/20 26/2
headway [2] 18/22
14/7 20/4
judge [13] 1/12 13/3
FBI's [5] 6/12 7/23 9/12
gee [1] 31/12
18/23
importantly [2] 6/17
15/10 15/25 17/22 17/22
14/12 16/14
general [4] 6/12 7/23
health [1] 34/6
33/1
23/24 24/13 30/8 38/24
federal [3] 14/2 23/24
21/21 44/17
hear [2] 5/15 35/20
impose [1] 10/3
40/8 41/8 42/24
24/19
gentleman [1] 21/20
heard [3] 3/6 15/22
impossible [1] 8/21
judgment [2] 23/9 23/11
fellow [3] 3/21 3/24 36/7
gets [1] 41/14
34/15
in-camera [3] 40/13
Judicial [1] 35/9
few [2] 27/3 44/19
getting [1] 43/5
40/14 41/8
July [5] 9/9 21/8 21/14
hearing [11] 1/10 5/18
field [1] 12/1
give [6] 4/5 14/1 19/17
5/22 6/21 13/8 23/3
inbox [1] 37/13
29/17 30/17
file [25]
20/15 36/12 38/21
include [3] 22/10 29/23 July 28 [4] 9/9 21/8
32/19 35/3 35/7 43/16
filed [13] 12/3 24/18
given [6] 11/8 13/14
43/17
30/16
21/14 29/17
30/7 31/18 34/12 34/22
17/9 19/3 20/16 28/2
hearings [2] 15/24 27/3 including [2] 9/9 9/22
July 28th [1] 30/17
36/1 36/19 38/9 39/12
giving [2] 8/16 17/10
held [3] 4/6 4/25 23/5
incredibly [1] 18/17
June [1] 8/18
39/20 43/24 44/13
indeed [4] 15/19 24/21 June 1 [1] 8/18
goes [1] 21/15
helpful [1] 14/15
files [3] 6/23 31/5 31/14
going [16]
helping [1] 15/4
24/21 24/22
jurist [1] 12/25
filing [14] 30/2 30/11
gonna [1] 30/1
Hence [1] 7/1
indicates [1] 3/7
just [25]
36/15 37/3 37/5 37/18
good [9] 3/5 3/17 5/2
inference [2] 10/8 32/24 Justice [3] 11/20 17/14
here [15] 3/8 5/9 5/13
everything [4] 13/9 14/4
37/7 40/16
evidence [5] 6/3 7/17
8/19 18/7 24/10
evidencing [1] 7/12
ex [2] 40/14 41/8
exact [1] 26/15
exactly [3] 27/11 31/13
39/7
examination [1] 41/8
examine [1] 9/3
examined [1] 24/6
example [1] 41/4
exchange [4] 8/6 8/8
22/9 29/14
exclude [1] 40/22
exist [4] 10/7 10/9 11/1
32/23
existed [4] 10/20 10/22
11/2 12/7
exists [5] 11/10 11/13
14/11 16/7 26/1
experience [1] 35/8
expert [4] 9/3 13/24
14/2 17/10
expertise [1] 24/20
experts [3] 14/3 23/21
24/17
explain [1] 36/18
explanation [1] 20/5
expose [1] 14/14
extension [2] 9/1 15/8
extent [3] 22/1 29/6
38/20
extreme [2] 10/2 25/25

41/2 42/10 44/16


filings [1] 38/25
finally [1] 9/19
finding [2] 10/7 32/23
finish [1] 36/22
Firm [1] 2/3
first [9] 3/12 10/5 10/17
16/8 25/13 26/14 39/9
42/16 43/20
FL [2] 2/4 2/10
FLORIDA [3] 1/1 1/7
1/17
FLSD [1] 37/14
FLSD.USCOURTS.GO
V [1] 37/14
folks [3] 3/5 43/15 43/15
follow [5] 9/4 15/21 38/2
38/19 39/15
follow-up [2] 9/4 15/21
followed [2] 21/20 23/10
following [1] 31/19
Footnote [1] 10/10
Footnote 17 [1] 10/10
forces [1] 34/8
foregoing [1] 45/11
foreign [1] 14/15
formal [1] 8/4
former [2] 11/19 23/21
forthright [1] 12/11
forward [1] 34/10
forwarded [5] 19/7
19/18 21/21 25/17 31/17
four [2] 7/8 27/3
Frank [1] 37/14
Franklin [4] 1/16 45/10
45/16 45/17
frankly [3] 18/11 18/22
22/14
fraud [1] 24/1
fraudulent [2] 17/5
24/10
Friday [2] 5/12 43/16
front [1] 17/11
full [1] 33/13
furnish [1] 27/10
further [1] 33/17

37/8 44/20
GOODMAN [5] 1/11
3/4 37/14 38/24 40/8
gosh [3] 4/1 4/16 5/1
got [4] 3/8 14/20 42/18
42/22
gotten [3] 4/19 8/13
41/24
Government [14] 6/15
6/18 7/3 13/13 13/17
21/3 21/12 22/14 22/18
23/1 23/5 24/11 34/7
34/8
Government's [1] 32/6
grant [1] 21/12
great [3] 11/5 35/15
43/11
grounds [1] 36/18
guess [2] 4/6 4/22
guidance [2] 31/10
38/22

16/22 30/23 34/2 35/1


39/17 41/21 42/15 43/6
here's [5] 26/23 29/25
30/5 34/18 35/21
herring [1] 13/19
hesitant [1] 38/16
high [3] 12/20 24/3
38/11
highest [1] 11/25
highly [3] 14/22 21/11
27/23
Hillary [2] 12/16 43/13
himself [1] 30/25
hold [1] 4/23
holding [1] 4/11
Holland [2] 2/9 33/5
Hollywood [1] 4/2
homework [1] 38/19
honest [1] 11/24
honor [39]
Honor's [2] 29/18 34/14
HONORABLE [2] 1/11
3/4
hope [1] 13/4
hopefully [1] 3/12
hoping [1] 3/6
hospital [2] 15/5 19/9
However [2] 11/11
22/18
huge [1] 12/19
hurdle [1] 44/10
husband [6] 35/5 35/24
40/16 42/20 43/9 44/3

49

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 50 of


35/24
12/1
42/1
objections [1] 8/9
J
53
Justice... [1] 27/21

K
keep [1] 9/24
keeping [3] 5/25 8/17
11/18
Kimmel [2] 3/19 3/22
kind [5] 17/16 32/12
32/22 35/13 38/16
Kirk [1] 24/17
Klayman [39]
knee [2] 38/9 38/10
Knight [2] 2/9 33/5
knives [1] 36/7
know [35]
knowing [1] 28/3
knowledge [3] 20/16
24/6 26/8
knows [3] 8/25 26/11
43/20

L
laid [1] 42/14
Lambert [1] 42/24
language [1] 40/3
Larry [3] 2/2 3/14 16/20
last [4] 3/18 13/24 17/10
27/3
lately [1] 5/7
laughing [1] 42/19
Laura [2] 2/5 5/4
law [3] 2/3 27/22 33/1
lawsuit [1] 31/14
lawsuits [1] 20/2
lawyer [1] 27/21
lawyers [1] 33/5
lead [2] 16/12 19/23
least [1] 38/7
leave [1] 6/2
left [1] 43/2
legal [1] 11/5
legally [1] 42/15
legitimate [1] 14/8
let [6] 15/3 16/5 20/25
34/23 36/22 40/4
let's [7] 3/11 15/6 18/14
27/5 28/15 37/1 41/4
letter [19]
letters [1] 37/3
liability [1] 11/3
lightly [1] 16/18
likely [1] 32/15
limited [1] 9/9
line [3] 3/7 14/5 26/6
Listen [1] 43/15
litigation [3] 22/21 29/4
40/22
litigations [1] 21/25
little [1] 43/5
local [2] 36/17 39/15
locate [6] 7/3 7/18 8/11
9/17 11/13 31/11
locating [1] 6/18
location [2] 9/7 29/22
long [2] 24/23 34/12
looked [3] 3/24 15/25

looking [3] 14/12 21/2


21/6
lose [1] 17/16
lot [3] 17/11 20/2 20/3

M
Machiavellian [1] 36/7
Magazine [1] 13/10
magistrate [2] 1/12
17/22
mail [33]
mails [6] 19/18 30/19
31/8 34/16 34/20 37/3
main [1] 18/8
major [1] 37/25
makes [2] 8/20 24/15
making [8] 12/11 13/5
18/23 26/4 27/8 28/7
33/9 38/16
man [1] 11/24
manner [2] 10/1 25/7
manufactured [1] 28/8
Maricopa [1] 23/19
MARRA [1] 1/2
married [1] 4/19
Marshals [1] 24/13
MARTINEZ [3] 3/3
13/3 30/8
massive [6] 7/1 8/20
19/2 30/22 31/4 31/14
material [4] 30/15 31/4
41/9 41/16
materials [7] 22/20
36/13 36/16 37/15 38/1
38/6 42/11
matter [9] 5/14 11/22
12/5 12/8 12/20 16/17
18/11 32/12 45/13
matters [2] 12/14 12/16
maybe [9] 4/18 4/19
17/21 27/2 33/4 33/4
33/5 39/10 39/11
me [31]
mean [10] 12/18 16/21
17/13 17/17 28/9 35/1
35/25 39/2 40/8 42/19
meaning [1] 26/17
means [3] 7/2 36/17
44/15
meant [1] 13/14
meantime [1] 15/16
meet [2] 7/25 8/8
meeting [1] 11/25
memo [1] 23/22
memoranda [2] 23/4
32/13
memorandum [4] 10/11
33/1 33/11 33/14
memorialized [1] 21/13
memorializing [1] 38/21
memos [1] 37/4
mentioned [4] 21/4
22/11 22/22 23/16
mere [1] 44/12
merely [1] 39/25
Merit [1] 45/10
Miami [4] 1/7 2/4 2/10

Micah [1] 2/5


Micha [1] 5/4
might [1] 44/13
mild [1] 32/8
million [8] 6/23 6/23
10/21 12/18 23/9 31/5
31/5 31/14
minimize [1] 36/11
minimum [1] 10/8
minute [1] 20/24
minutes [1] 15/22
missed [1] 3/9
missing [1] 12/20
misspeak [1] 16/2
misspoke [1] 16/4
mix [2] 16/21 22/23
modern [1] 24/9
Monday [4] 9/6 9/15
30/2 33/18
Mont [1] 23/15
MONTGOMERY [37]
Montgomery's [4] 20/9
30/14 30/25 33/12
month [1] 9/2
months [2] 4/25 4/25
moot [1] 14/13
most [7] 6/3 6/16 20/4
31/9 31/9 31/10 32/15
motion [25]
motivation [1] 35/24
moving [3] 12/21 15/3
15/7
Mr. [110]
Mr. Baker [7] 6/14 6/23
7/1 7/5 10/24 25/18
27/25
Mr. Baker's [8] 7/13
9/11 11/24 21/7 21/18
21/21 22/17 30/21
Mr. Clayman [1] 37/2
Mr. Drake's [1] 24/6
Mr. Ickes [1] 35/9
Mr. Klayman [35]
Mr. Mont [1] 23/15
Mr. Montgomery [30]
Mr. Montgomery's [4]
20/9 30/14 30/25 33/12
Mr. Risen [4] 13/10
13/12 17/3 18/12
Mr. Schwartz [13] 8/3
9/12 11/16 20/16 21/20
26/7 26/17 27/15 27/18
30/3 31/1 34/17 38/11
Mr. Schwartz's [2]
25/13 28/20
Mr. Ted [1] 28/16
Mr. Toth [1] 33/4
Mr. Weebie's [1] 24/5
Mrs. [2] 35/5 42/19
Mrs. Clinton [1] 35/5
Mrs. Handman [1]
42/19
Ms. [29]
Ms. Curtis [3] 22/22
30/13 30/14
Ms. Handman [23]
Ms. Handman's [1]

Ms. James [1] 12/4


Ms. Klayman [1] 38/12
much [5] 18/12 18/22
18/23 27/2 36/9
must [4] 16/8 21/25 29/4
31/16
myself [4] 12/3 16/1
25/18 37/16

N
naive [1] 32/1
name [4] 7/7 14/2 17/10
25/13
national [5] 14/25 16/16
19/12 34/5 35/18
nature [1] 39/11
necessary [4] 8/11 15/7
15/9 33/16
need [10] 4/24 9/2 12/6
15/12 22/3 29/8 30/9
33/11 38/9 39/12
needed [1] 7/5
needs [1] 34/21
neither [2] 22/18 26/2
network [2] 24/4 24/9
Nevada [1] 23/4
never [12] 4/19 11/17
13/12 15/25 17/23 18/15
18/16 18/16 20/18 23/10
27/18 32/24
news [2] 12/15 13/11
newspaper [1] 17/7
next [3] 30/10 30/24
44/19
nice [2] 25/23 27/12
night [1] 3/19
nilly [3] 11/3 28/1 36/11
no [27]
noise [1] 3/6
nonclassified [1] 6/6
none [2] 24/6 45/6
Notably [1] 6/17
note [1] 13/13
noted [1] 18/6
nothing [2] 26/19 36/25
notice [2] 10/19 30/2
notion [1] 40/17
notwithstanding [1]
32/16
November [1] 23/23
November 13th [1]
23/23
NSA [2] 23/21 24/17
number [3] 7/6 33/10
33/10
NW [1] 2/6

O
oath [1] 20/22
Obama [3] 35/4 35/14
43/13
objected [1] 30/6
objection [14] 8/5 12/25
13/18 14/8 14/8 14/14
15/16 17/19 19/11 22/8
22/14 26/6 26/21 29/13
objection's [1] 15/19

obligation [1] 22/19


observation [2] 31/24
35/21
observe [1] 42/7
observed [1] 8/19
obtain [1] 21/6
obviously [9] 12/17
13/14 18/2 33/9 33/11
39/4 40/2 41/6 41/17
occasion [1] 26/3
October [16]
October 1 [3] 9/12 22/6
29/11
October 1st [2] 8/1
30/19
October 26 [2] 9/20
31/21
October 26th [1] 32/1
October 5 [1] 7/22
October 5th [2] 28/18
30/3
October 6th [2] 28/19
30/4
October 7th [1] 8/8
off [1] 3/11
office [3] 12/1 23/19
23/21
officer [3] 20/8 27/22
42/7
Official [1] 1/16
oh [5] 4/7 4/9 4/16 26/15
43/11
okay [15] 5/2 16/5 18/1
20/14 20/21 26/13 27/1
27/16 29/1 35/3 36/23
38/13 43/4 43/7 43/13
on-the-street [1] 3/23
one [19]
ones [1] 22/10
ongoing [2] 11/11 14/16
only [9] 6/14 8/16 17/10
22/14 22/24 24/16 25/7
37/4 37/6
operative [1] 36/2
opinions [1] 17/4
opportunity [4] 12/24
20/15 33/14 36/12
opposing [3] 41/11
41/14 42/10
opposite [1] 26/15
oral [2] 19/4 45/3
orally [1] 16/20
order [33]
ordered [6] 6/4 7/14 9/8
10/18 34/3 43/1
orders [1] 14/23
orientation [1] 44/17
others [2] 37/20 37/21
otherwise [1] 24/7
our [11] 7/25 8/22 9/2
10/10 12/25 15/2 23/3
24/16 25/8 25/9 26/5
outlined [1] 25/10
outright [1] 24/10
over [20]
overstated [1] 39/11
own [3] 8/16 9/25 34/7

50

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 51 of


protect [2] 34/13 41/17 recess [1] 44/20
41/23
return [1] 9/23
P
53
page [4] 1/15 23/22 37/8
37/8
page-by-page [1] 37/8
pages [7] 6/24 10/21
12/18 12/19 31/5 37/7
37/21
paid [1] 23/19
paint [1] 17/21
Palm [1] 1/17
paper [2] 37/2 37/5
paragraph [5] 5/18 6/4
7/14 9/8 29/19
paragraph 5 [4] 5/18
7/14 9/8 29/19
paragraph 6 [1] 6/4
paralegal [1] 12/4
parameters [1] 26/3
paren [1] 6/7
parte [2] 40/14 41/8
participated [1] 15/4
particular [3] 18/6 31/1
41/15
particularly [2] 4/24
11/21
parties [3] 40/10 40/22
41/21
party [2] 23/6 41/11
past [1] 28/9
Pay [1] 17/5
pending [2] 6/15 19/11
Pennsylvania [1] 2/6
people [3] 20/3 37/25
41/1
perceive [1] 36/6
perfectly [1] 38/13
perhaps [2] 16/2 38/1
period [1] 42/23
permission [1] 34/14
permit [2] 10/1 36/16
perpetrated [1] 24/11
person [3] 12/16 19/23
24/11
personal [2] 35/1 35/2
personally [1] 39/16
perspective [1] 35/23
persuaded [1] 18/5
phone [3] 3/13 5/3 33/10
phonetic [1] 24/5
phrase [1] 36/11
pieces [2] 37/2 37/5
pinpoint [2] 31/3 31/13
place [2] 41/19 42/8
PLAINTIFF [13] 1/4
2/2 3/12 6/5 6/24 7/4
7/11 8/21 9/6 9/23 18/8
29/20 29/20
Plaintiff's [4] 6/10 6/13
8/7 9/24
Plaintiffs [1] 6/20
plan [1] 6/1
Playboy [1] 13/10
please [5] 7/12 28/17
28/23 28/25 30/1
plot [1] 14/10
point [7] 12/9 17/1
22/16 24/14 27/7 36/19

protected [1] 41/5


political [1] 36/2
protective [2] 41/19
politically [1] 35/11
42/6
position [1] 42/9
protocol [1] 38/18
possibility [1] 39/13
prove [2] 18/9 18/9
possible [1] 44/8
possibly [3] 14/24 19/24 provide [14] 7/3 7/12
8/3 8/23 9/15 9/17 9/19
42/2
9/25 21/23 22/3 29/2
post [1] 5/18
29/8 42/3 44/2
post-hearing [1] 5/18
provided [9] 7/11 7/19
potentially [5] 14/14
16/12 19/12 20/5 44/13 8/12 10/3 10/21 11/12
12/2 19/19 23/22
practical [1] 31/23
providing [5] 8/5 8/20
preclude [1] 42/10
predicted [2] 13/7 17/25 22/9 29/14 44/6
provision [1] 9/22
prefer [2] 20/3 44/12
provisional [1] 37/18
prehearing [1] 10/11
prejudice [5] 10/2 10/6 public [11] 13/11 15/14
16/15 17/7 21/19 35/16
32/10 32/23 36/3
39/4 40/10 40/18 41/21
premise [1] 13/9
present [3] 2/8 7/7 12/4 42/11
publication [1] 17/5
presentation [2] 37/7
publications [1] 13/10
37/22
published [1] 13/9
presented [1] 25/7
purported [1] 40/1
presiding [1] 3/4
purports [1] 23/16
pressed [1] 38/12
purpose [1] 22/20
presumably [1] 34/18
pursuant [1] 16/11
prevent [1] 26/19
put [6] 10/18 12/9 12/10
Price [1] 17/5
13/18 17/12 21/19
prior [6] 7/13 8/10
putting [2] 22/24 39/3
13/10 14/3 14/4 17/7
Privacy [5] 22/2 26/13
Q
26/19 29/7 29/9
privilege [4] 11/21 22/15 qualifications [1] 14/4
question [1] 20/25
41/16 42/6
questions [3] 15/21
privileged [1] 41/10
33/21 43/18
privy [1] 11/25
probably [4] 8/25 33/15 quite [2] 18/11 18/22
quote [8] 5/23 6/5 7/1
33/18 38/15
8/1 8/5 20/2 23/25 44/14
problem [2] 25/9 25/9
quotes [1] 21/16
procedure [3] 37/24
quoting [3] 6/11 6/17
38/3 42/15
40/3
procedures [1] 39/16
proceed [1] 16/22
R
proceeding [2] 12/21
ranking [1] 38/11
23/24
rational [1] 38/6
proceedings [3] 1/10
rationale [1] 40/1
44/24 45/12
process [4] 21/16 34/11 Ratner [2] 2/5 5/5
reaction [2] 38/10 38/11
41/20 42/5
Read [2] 28/23 28/25
processing [1] 24/9
produce [7] 6/8 9/6 23/7 realistic [1] 31/24
realize [3] 30/6 30/7
25/2 31/22 31/25 34/4
produced [6] 7/14 7/17 31/7
really [7] 4/7 18/11
13/2 25/3 32/16 41/19
producing [4] 6/19 14/2 31/12 32/10 32/11 41/20
42/5
30/11 34/3
product [4] 11/14 14/18 Realtime [1] 45/11
reason [3] 12/6 32/2
41/5 41/7
34/21
production [7] 10/1
reasonable [3] 7/2 38/6
21/12 22/4 23/12 29/9
42/14
29/20 29/24
reasons [4] 14/21 32/2
proffer [1] 21/10
34/6 44/15
profile [1] 12/20
recall [2] 5/21 15/23
project [2] 33/3 33/7
receive [1] 11/5
promptly [1] 25/3
received [2] 6/16 28/7
proof [1] 18/20
recently [2] 5/24 23/23
prosecutor [1] 11/20

reckless [1] 18/17


recommendation [1]
32/14
record [6] 12/3 13/12
35/16 39/3 40/17 45/12
recordings [1] 24/3
records [1] 21/19
red [1] 13/19
reference [5] 4/13 4/20
21/1 35/6 42/20
referenced [5] 7/13 9/10
21/7 21/17 21/18
references [1] 29/16
referring [1] 23/18
regard [8] 11/25 12/22
13/21 14/3 20/23 26/7
31/8 34/24
regarding [1] 9/7
Registered [1] 45/10
regularly [1] 37/25
regulations [4] 8/4 22/1
26/18 29/5
reinstatement [1] 23/11
related [1] 29/23
relation [1] 6/7
relationship [1] 27/23
relatively [1] 44/11
relevant [1] 21/11
relied [2] 13/12 17/24
remain [1] 37/18
remains [1] 41/10
remarkable [1] 24/15
remind [1] 23/2
report [1] 32/14
Reporter [4] 1/16 1/16
45/10 45/11
representations [1]
21/10
request [19]
requested [3] 7/11 7/18
15/8
requests [2] 21/24 29/3
require [1] 13/2
required [3] 8/14 9/16
12/6
requirements [3] 9/21
26/19 42/8
requires [1] 10/13
requiring [2] 32/17 36/1
research [1] 33/15
resources [1] 12/17
respect [5] 11/20 13/1
14/22 14/22 15/10
respectfully [2] 9/5
15/15
respond [3] 25/22 33/14
39/2
responded [2] 8/1 28/19
response [7] 8/13 9/12
22/7 28/20 29/12 30/4
33/12
rested [1] 17/2
restriction [1] 39/4
result [2] 14/25 34/9
resulted [2] 23/9 24/8
retrieval [2] 10/1 21/16
retrieve [2] 8/21 8/23

reveals [1] 24/6


revelations [1] 5/21
review [15] 10/25 12/13
13/25 15/17 19/10 22/20
23/22 33/12 36/13 37/15
39/2 39/10 40/14 40/14
42/12
reviewed [3] 20/7 20/12
24/14
reviewing [1] 42/11
revolving [1] 12/7
right [13] 3/17 4/3 4/14
5/6 5/9 5/12 6/6 15/2
26/4 27/6 28/13 29/25
40/5
RISEN [9] 1/6 3/3 6/19
13/10 13/12 17/3 17/18
18/12 34/9
RMR [2] 1/16 45/17
room [1] 43/2
routine [1] 32/12
rule [6] 5/19 10/4 17/22
25/10 36/17 39/15
ruled [3] 14/10 15/16
39/5
rules [3] 14/2 15/9 15/10
ruling [7] 30/6 33/8 33/9
37/20 41/13 43/18 44/18
rulings [4] 33/19 33/21
33/23 38/21
run [3] 14/8 15/3 26/5

S
safety [1] 34/6
sake [3] 18/14 35/22
37/1
same [3] 7/12 41/20 42/5
sanction [2] 23/8 32/9
sanctioned [1] 23/8
sanctions [5] 5/17 5/19
10/3 25/10 32/7
Sandy [1] 5/10
Sanford [1] 2/8
satisfied [1] 9/21
say [10] 5/15 6/14 10/17
15/22 21/15 29/18 37/1
38/13 39/10 41/4
saying [10] 13/1 13/3
16/1 16/6 16/10 19/23
26/25 34/18 35/21 40/5
says [9] 21/9 22/18 26/8
26/9 26/14 26/14 26/15
27/11 41/25
scandals [1] 42/23
Schwartz [17]
Schwartz's [2] 25/13
28/20
seal [45]
sealed [1] 39/5
sealing [3] 39/17 40/23
42/7
second [3] 12/2 39/10
43/22
Secondly [2] 10/23 26/7
secretly [1] 5/24
security [8] 14/25 16/16
19/13 34/6 35/18 41/25

51

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 52 of


subpoena [1] 8/4
situation [1] 17/13
23/21
things [8] 12/13 24/2
S
53
security... [2] 42/3 42/4
seeing [1] 41/18
seek [3] 5/19 22/10
29/15
seeking [3] 6/2 32/8
40/13
seem [2] 15/23 36/4
seems [1] 23/13
seen [6] 18/16 19/15
19/18 19/20 19/22 38/10
seized [1] 24/12
self [1] 6/5
self-described [1] 6/5
sell [1] 13/14
sending [1] 31/1
sends [1] 31/9
sensitive [10] 4/24 19/25
20/1 20/3 36/10 38/8
38/17 39/11 39/24 44/14
sent [10] 7/24 19/16
19/21 22/5 22/7 29/10
29/12 30/20 31/16 31/18
September [12] 6/5 6/9
6/12 7/10 7/17 7/24 9/11
10/24 21/8 22/8 29/13
30/18
September 21st [1] 7/10
September 24 [4] 7/24
9/11 22/8 29/13
September 24th [1]
30/18
September 4 [3] 6/5 6/9
7/17
September 8th [3] 6/12
10/24 21/8
seq [1] 29/5
sequester [1] 6/2
serious [1] 43/7
seriously [1] 32/21
serve [3] 39/21 43/24
44/4
set [2] 31/2 31/10
setting [1] 18/24
seven [1] 37/3
several [1] 37/25
SFranklinUSDC [1]
1/18
shall [2] 29/20 31/15
share [2] 43/9 44/2
sharpening [1] 36/7
sheriff's [2] 23/19 23/21
should [6] 14/7 17/22
26/5 33/15 40/17 42/10
show [1] 3/19
shown [1] 41/3
sic [2] 38/13 44/13
side [3] 41/3 41/7 41/18
significant [4] 12/15
16/17 32/2 44/10
significantly [1] 3/24
similar [3] 3/25 3/25
23/18
simply [4] 17/6 20/6
32/19 33/9
since [2] 8/18 16/11
sir [1] 25/21

subsequent [1] 9/13


slam [1] 38/2
subsequently [1] 24/12
sleep [1] 27/2
substantial [1] 32/22
smear [1] 34/10
such [8] 7/21 11/13
Snow [2] 23/24 24/13
13/25 16/7 25/7 26/1
so-called [1] 23/15
27/17 38/2
software [73]
sufficient [1] 44/15
somebody [1] 41/4
suggestion [2] 33/2 33/6
somehow [1] 36/3
someone [2] 30/9 38/14 suit [1] 24/18
Suite [3] 2/3 2/7 2/9
something [5] 4/14
15/10 17/23 36/15 40/21 summarizing [1] 33/18
summary [1] 24/4
sometimes [1] 3/22
Sunset [1] 4/1
soon [1] 19/8
supplement [1] 10/12
sooner [3] 17/11 33/7
supply [1] 25/1
33/8
supporting [1] 33/1
sorry [2] 32/6 43/15
supports [2] 13/23 24/7
sort [2] 31/23 39/7
supposed [1] 7/16
sought [1] 22/15
sure [4] 31/9 33/13
sound [1] 44/11
34/25 34/25
sounds [1] 44/10
surprise [1] 3/23
source [1] 13/13
sources [2] 13/12 15/14 suspect [1] 38/17
suspicion [1] 38/7
SOUTHERN [1] 1/1
swear [1] 20/22
speaking [1] 3/25
specific [9] 7/4 8/18 21/5
31/10 31/25 32/25 33/18 T
tactic [1] 17/12
33/21 34/19
tails [1] 17/16
specifically [2] 22/17
take [8] 13/4 25/25
23/4
28/15 36/13 38/6 40/15
specified [1] 7/5
42/18 44/21
speculated [1] 18/15
taken [3] 16/18 37/17
speculation [1] 20/6
37/18
speed [2] 12/21 15/7
talking [2] 30/17 34/16
spoken [1] 18/16
spoliation [2] 8/22 32/10 technically [1] 14/18
Ted [6] 7/22 25/14 25/15
stage [1] 17/1
25/16 28/7 28/16
stance [1] 15/2
start [3] 3/11 14/1 33/15 telephone [3] 2/3 2/5
32/19
started [3] 33/2 34/11
television [3] 3/18 5/6
42/19
24/3
starting [1] 3/9
tell [7] 15/13 20/8 22/5
state [1] 31/15
29/10 31/12 34/23 42/19
statement [1] 18/19
tells [1] 26/9
STATES [4] 1/1 1/12
terms [3] 11/12 17/7
14/16 16/16
34/3
stay [3] 5/23 30/7 30/8
test [1] 9/3
step [1] 28/15
Stephen [4] 1/16 45/10 testified [1] 17/19
testimony [5] 13/11
45/16 45/17
13/15 14/4 17/8 25/23
still [1] 18/20
Thank [4] 5/16 10/14
stored [1] 19/3
44/22 44/23
story [2] 23/18 24/23
that's [34]
strategic [1] 13/6
themselves [1] 17/2
strategy [2] 6/1 17/12
street [3] 1/17 3/22 3/23 theory [2] 32/10 41/12
there's [8] 3/21 21/15
stretched [1] 12/17
26/10 32/1 33/20 36/9
strike [1] 34/19
38/20 40/21
stroke [2] 15/5 19/9
therefore [5] 17/4 30/8
stuff [1] 27/4
subject [11] 6/7 8/4 8/17 32/5 32/18 39/20
11/14 29/18 29/24 39/3 they're [7] 12/21 13/5
15/6 15/11 26/4 41/6
41/7 41/19 42/2 42/12
44/14
submission [3] 41/2
they've [1] 22/15
41/10 44/8
thin [1] 12/17
submissions [1] 39/19
thing [3] 13/23 35/13
submit [1] 37/13
38/24
submitting [1] 41/6

24/2 26/9 28/1 28/10


35/9 40/9
think [18]
those [12] 14/13 16/13
19/3 21/17 22/10 24/16
26/2 37/4 37/15 38/14
44/3 44/15
though [3] 8/14 31/24
38/10
thought [2] 39/11 43/17
thoughts [1] 43/22
threaten [1] 36/3
threatened [1] 34/7
three [2] 7/7 37/3
through [1] 27/25
throughout [1] 6/25
Thursday [1] 31/19
timely [2] 10/1 32/16
times [2] 38/3 38/4
today [4] 3/16 5/17
18/25 30/17
told [9] 12/5 18/24 20/19
22/13 23/18 24/23 27/18
44/5 44/9
Tom [1] 24/17
too [2] 13/4 14/6
took [1] 14/10
total [1] 24/1
totaling [1] 31/5
Toth [1] 33/4
Touhy [6] 8/4 22/1
26/10 26/11 26/18 29/5
track [2] 19/1 19/17
transcript [2] 1/10
45/12
Tremaine [1] 2/6
true [5] 13/20 18/2
18/19 28/3 35/25
try [10] 13/22 17/14
18/1 19/1 26/3 30/21
30/22 35/12 35/16 37/6
trying [7] 11/13 13/20
13/21 34/10 34/10 35/10
41/17
Tuesday [2] 30/10 30/10
turn [12] 11/2 14/11
14/23 17/23 20/4 20/19
26/10 26/15 26/18 26/21
28/1 29/21
turned [4] 5/24 31/6
31/14 42/17
turning [2] 6/7 30/14
turns [1] 18/18
twice [1] 42/21
two [15] 6/21 7/7 15/22
22/11 23/21 23/22 24/17
26/8 32/20 33/10 37/4
37/4 37/7 37/12 44/6
two-page [1] 23/22
type [1] 36/1
typically [2] 32/13 44/15

unable [2] 21/23 29/2


under [49]
under-seal [19]
understand [3] 5/13
26/24 40/5
understanding [1] 40/20
understands [1] 44/18
understood [1] 22/19
undertake [1] 22/18
underway [2] 33/7
33/16
undoubtedly [1] 16/15
unduly [1] 33/17
unequivocally [1] 20/9
unfairly [1] 36/3
Unfortunately [1] 25/23
unique [1] 37/24
UNITED [4] 1/1 1/12
14/16 16/16
Unless [1] 40/13
unseal [3] 37/20 37/22
39/1
unsealed [3] 38/4 40/23
41/14
until [2] 39/5 40/23
upon [2] 15/16 21/9
us [10] 7/12 8/6 14/1
17/10 17/12 19/19 22/3
23/13 28/2 29/8

V
value [1] 27/23
variety [1] 32/12
various [1] 30/15
versus [1] 3/3
very [15] 5/11 11/24
12/13 12/15 12/20 12/24
16/17 23/18 35/4 35/4
35/10 35/11 36/6 42/14
43/14
vest [1] 11/19
view [2] 8/22 38/6
violation [2] 14/2 32/10
volume [1] 24/3

wait [1] 27/13


waiver [2] 22/3 29/8
want [11] 14/6 28/4 30/2
31/8 32/21 33/13 34/5
36/10 43/8 43/21 43/22
wanted [1] 20/15
Washington [1] 2/7
wasn't [3] 4/24 27/7
28/2
Watch [1] 35/9
ways [1] 37/12
we'd [2] 9/14 9/19
we're [15] 3/9 5/13 5/17
13/1 13/3 13/3 16/22
17/20 24/25 24/25 25/10
34/16 38/13 40/19 43/5
U
we've [2] 3/8 30/16
U.S [3] 12/1 16/19 24/13 Wednesday [2] 30/24
31/16
U.S.C [1] 29/7
Weebie [1] 24/17
ultimate [1] 32/9
Weebie's [1] 24/5
ultimately [2] 23/9

52

Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 53 of


43/23 43/24
W
53
you're [16]
weekend [1] 44/21
you've [5] 18/3 18/21
weeks [2] 4/23 27/3
20/11 39/5 44/9
welfare [1] 34/6
yourself [2] 27/10 36/13
well [18]
went [3] 12/19 13/1 15/5
West [1] 1/17
what's [4] 14/13 16/13
28/17 44/19
whatever [4] 22/25 32/2
33/15 44/14
whenever [1] 4/23
where [8] 20/10 29/16
29/18 34/18 37/25 41/1
41/2 41/21
whereby [1] 11/9
whether [20]
while [3] 4/6 19/10
40/19
whistleblower [3] 23/17
24/18 24/22
who's [2] 34/7 38/11
whoa [2] 27/13 27/13
why [10] 6/20 11/1
14/20 16/17 16/25 19/24
25/10 25/18 42/1 42/24
wife [2] 4/14 4/21
wildly [1] 18/15
willy [3] 11/3 28/1 36/11
willy-nilly [3] 11/3 28/1
36/11
win [1] 17/16
wish [1] 44/20
withheld [1] 15/19
without [7] 5/25 5/25
6/1 6/2 13/2 32/13 42/4
witness [3] 14/19 19/14
25/24
witnesses [1] 42/23
won't [3] 28/12 39/4
40/16
words [3] 35/23 37/1
39/8
work [10] 10/8 10/9
11/14 14/18 18/15 18/18
18/19 27/22 41/5 41/6
worked [1] 32/24
works [1] 9/3
worthy [1] 37/5
Wright [1] 2/6
writing [4] 12/9 19/4
19/6 38/12
written [9] 19/20 21/2
31/15 32/25 33/14 33/17
33/25 34/1 38/20
wrote [6] 6/10 6/13
17/24 18/17 28/18 34/9

Y
yeah [3] 4/8 4/22 16/4
year [2] 24/19 34/12
years [1] 34/11
yes [10] 3/14 4/11 4/12
10/16 25/21 26/12 28/22
40/18 40/19 41/22
yet [1] 15/9
you'll [4] 37/8 43/23

Case 1:15-cv-20782-JEM Document 166-4 Entered on FLSD Docket 10/28/2015 Page 1 of 3

EXHIBIT 4

Case 1:15-cv-20782-JEM Document 166-4 Entered on FLSD Docket 10/28/2015 Page 2 of 3


Ratner, Micah
From:
Sent:
To:
Cc:
Subject:

Schwartz, Ted (OGC) (FBI) <Ted.Schwartz@ic.fbi.gov>


Friday, October 23, 2015 3:44 PM
Larry Klayman
Dina James; Curtis, Deborah (USADC); Gomez, Raphael (CIV); Handman, Laura; Ratner,
Micah
Montgomery v. Risen

Mr. Klayman reference my October 1, 2015 email to you. Since that date, I have received the following from you:
an email dated October 12, stating that you had asked Mr. Montgomery to clarify if and where any software
can be located on the disks he provided and that you would get back to me in a few days;
two emails dated October 13. In the first email, you stated that you were forwarding information from Mr.
Montgomery in response to my October 1, 2015 letter [sic] and that this information is provided for use solely
in your criminal investigation. The second email, sent a few minutes later, included the same .pdf attachment
and link to Dropbox that had been included in the first email;
three emails dated October 21. In the first, you stated that you were forwarding information which may help
your agents locate any of the subject software, in whole or in part, if it exists on the hard drives provided. The
second email, sent a few minutes later, contained the same text. In the third email, you asked for a telephone
call to discuss the criminal and civil matters.
Yesterday (October 22) I checked the PACER docket and saw your October 21, 2015 Supplement to Notice of Filing, etc.
(docket no. 158). In that filing, you state that the Declaration of Mr. Montgomery attached to that filing was provided to
the FBI today. I dont know how or to whom you sent that declaration, but I did not receive it from you.
Mr. Montgomery states in that declaration that he does not believe that he provided the subject software to the
FBI. His declaration then references additional information (attached) which may allow the FBI to see if the software in whole or in part exists on the drives I turned over to the FBI to conduct its ongoing classification review. The
additional information purportedly attached to the declaration is not included in the PACER filing. Also, it is unclear
why the declaration refers to an ongoing classification review as you know, the FBIs September 8, 2015 letter to you
pointed out that the FBI took possession of the hard drives with the sole understanding that the Government would be
conducting a review of your clients allegations, and for no other purpose and that the Government never agreed to
undertake a classification review of any material on the hard drives.
You may recall that my October 1, 2015 email stated that to ensure that FBI resources are not wasted looking for
software that does not exist, we are requesting that Mr. Montgomery confirm, in writing, that the software being
requested in civil discovery can be found on one or more of the hard drives that he provided to the FBI on August 19,
2015, if that is in fact the truth. This request is consistent with the agreement that you reached with the U.S. Attorneys
Office, that requests for copies of materials on the hard drives would not unduly burden the FBI. Mr. Montgomery has
now stated that he does not believe that the subject software is on the hard drives. Not surprisingly given that belief -Mr. Montgomery has not provided us the detailed information requested in the September 8, 2015 letter which would
allow us, without undue burden, to locate the software among the 51.6 million files which he claims to have provided
us. For these reasons, the FBI will not search the drives to locate software requested in the Risen litigation.
Ted Schwartz
Assistant General Counsel
Civil Litigation Unit I, OGC
FBI
1

Case 1:15-cv-20782-JEM Document 166-4 Entered on FLSD Docket 10/28/2015 Page 3 of 3


Confidentiality Statement
This message is transmitted to you by the Office of the General Counsel of the Federal Bureau of Investigation. The
message, along with any attachments, may be confidential and legally privileged. If you are not the intended recipient
of this message, please destroy it promptly without further retention or dissemination (unless otherwise required by
law). Please notify the sender of the error by a separate e-mail.

Case 1:15-cv-20782-JEM Document 166-5 Entered on FLSD Docket 10/28/2015 Page 1 of 5

EXHIBIT 5

Case 1:15-cv-20782-JEM Document 166-5 Entered on FLSD Docket 10/28/2015 Page 2 of 5

Case 1:15-cv-20782-JEM Document 166-5 Entered on FLSD Docket 10/28/2015 Page 3 of 5

Case 1:15-cv-20782-JEM Document 166-5 Entered on FLSD Docket 10/28/2015 Page 4 of 5

Case 1:15-cv-20782-JEM Document 166-5 Entered on FLSD Docket 10/28/2015 Page 5 of 5

Case 1:15-cv-20782-JEM Document 166-6 Entered on FLSD Docket 10/28/2015 Page 1 of 3

EXHIBIT 6

Case 1:15-cv-20782-JEM Document 166-6 Entered on FLSD Docket 10/28/2015 Page 2 of 3


Ratner, Micah
From:
Sent:
To:
Cc:
Subject:

Ratner, Micah
Thursday, September 24, 2015 3:18 PM
'Larry Klayman'
Handman, Laura; Brian.Toth@hklaw.com; <Sandy.Bohrer@hklaw.com>; Dina James;
Naveed Mahboohian; Jonathon Moseley
RE: Rule 72

Mr. Klayman,
I was out yesterday for Yom Kippur. Your position is incorrect. As Judge Goodman held in denying your request for a
stay, and as we correctly stated in our opposition to your objection and in emails to you, Rule 72(a) provides in relevant
part that when a magistrate judge decides a pretrial matter [that] is not dispositive, the district judge must . . . modify
or set aside any part of the order that is clearly erroneous or is contrary to law. Fed. R. Civ. P. 72(a). De novo review
you cite from Rule 72(b)(3) applies only when the magistrate decides a dispositive issue. Fed. R. Civ. P. 72(b)(1)-(3).
Thus, contrary to your statements below, de novo review does not apply to your objections to the magistrates nondispositive order requiring you to produce the software by September 4.
Similarly, your assertion that you do not need to obtain a stay of the magistrate judges order while your objection to
the district court is pending is incorrect. Even though a party may object to a magistrate judges order on a nondispositive matter, the order is nonetheless a final order absent reversal by the district court. TemPay, Inc. v. Biltres
Staffing of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1260 (M.D. Fla. 2013) (collecting cases). As a result, an objection to
such final order does not stay the order or relieve the party of the obligation to comply with the order. Id. See also, e.g.,
Myers v. Cent. Fla. Investments, Inc., 2006 WL 462589, at *1 n.1 (M.D. Fla. Feb. 27, 2006) (Filing an objection to a
discovery order does not operate as a stay of the Order.); 12 Wright, Miller, & Marcus, Federal Practice and Procedure,
3069 (2d ed.) (stating that a timely objection does not automatically render the magistrate judges ruling invalid until
the district court acts on the objection). It is plain you understood no automatic stay of Judge Goodmans August 22
order was in place, since you moved for a stay of that order pending your objection. And Judge Goodman recognized
that there was no automatic stay when he denied your motion to stay and ordered you, once again, to produce the
software by September 4.
We ask you again to produce the software by September 24, or, at the very least, produce evidence that you have taken
all necessary steps to obtain the software such as outlined in Mr. Bakers letter of Sept. 8. Otherwise, we may then seek
appropriate relief from Judge Goodman for your refusal to comply with his August 22 order.
Thank you,
Micah
Micah Ratner | Davis Wright Tremaine LLP
1919 Pennsylvania Avenue NW, Suite 800 | Washington, DC 20006-3401
Tel: 202-973-4223 | Fax: 202-973-4423
Email: micahratner@dwt.com | Website: www.dwt.com
Anchorage | Bellevue | Los Angeles | New York | Portland | San Francisco | Seattle | Shanghai | Washington, D.C

Case 1:15-cv-20782-JEM Document 166-6 Entered on FLSD Docket 10/28/2015 Page 3 of 3


From: Larry Klayman [mailto:leklayman@gmail.com]
Sent: Wednesday, September 23, 2015 10:52 AM
To: Ratner, Micah; Handman, Laura; Brian.Toth@hklaw.com; <Sandy.Bohrer@hklaw.com>; Dina James; Naveed
Mahboohian; Jonathon Moseley
Subject: Rule 72

Please Fed. R. Civ. Proc. 72 before you consider filing a motion with regard to our objection to the magistrate
judge's order concerning the software and related matters. Subpart (3) in particular of the rule is most
instructive.
Should you decide nevertheless to not allow the judge to decide de novo the issues pending and file a frivolous
motion, we will request sanctions.
Micah, I do not appreciate your mis-citing law which is textbook and blackletter in opposition to your position
about that our client has to seek a stay while our objection is heard by the judge. Thank you for using a
"different approach" in the future.
Sincerely,
Larry Klayman