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Case 1:16-cv-00126-RC Document 260 Filed 02/25/16 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
DENNIS L. MONTGOMERY
Plaintiff,
v.
Civil Action No. 1:16-cv-00126-RC
JAMES RISEN, ET AL.,
Defendants.

PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION


TO PLAINTIFFS MOTION FOR PROTECTIVE ORDER
Dennis Montgomery, Plaintiff in the action Montgomery v. Risen, No. 15-cv-20782-JEM
(S.D. Fla. filed Feb. 24, 2015) (the "Underlying Action"), hereby files this Reply to Defendants
James Risens, Houghton Mifflin Harcourt Publishing Company ("HMH"), and Houghton
Mifflin Harcourt Companys ("HMHC")s Opposition to Plaintiffs Motion for Protective Order
(Dkt. No. 259). Well after the close of discovery, which opened as early as September 10, 2015
as set forth below, Defendants seek to depose Plaintiffs son-in-law, Istvan Andras Burgyan, as
well as to produce documents.
Defendants allege disingenuously that their motion was timely. However, this is grossly
untrue as it was even filed weeks after the close of discovery. Discovery in the underlying action,
which is now before this Court, ended and closed on November 19, 2015. [Dkt. No. 131].
Defendants motion to compel before another court was not filed until weeks later, on December
7, 2015, (see Exhibit 1 Docket Sheet for the U.S. District Court for the Western District of
Washington), well after discovery had closed. Importantly, Defendants had the opportunity to
file this Motion to Compel at any moment after they received Mr. Burgyans facsimiles on
November 16, 2015 that he objected to his deposition based on a number of grounds including

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insufficiency of service of process and untimeliness.


Courts within the majority of federal circuits strictly adhere to the rule that a discovery
motion must be filed before the close of discovery. In Rogers v. Brauer Law Offices, PLC, 2011
U.S. Dist. LEXIS 93905, 12-15 (D. Ariz. Aug. 22, 2011), the U.S. District Court for the District
of Arizona examined relevant rulings throughout the U.S. Court of Appeals for the Ninth Circuit.
As the Court held:
Affirming the importance of a scheduling order, numerous courts within the Ninth
Circuit have denied discovery motions filed after the close of discovery. Kizzee v.
Walmart, Inc., 2011 U.S. Dist. LEXIS 90898, 2011 WL 3566881, * 1 (D.Ariz.,
August 15, 2011) (motion to compel discovery made more than three months after
the discovery deadline denied as untimely); Skinner v. Ryan, 2010 U.S. Dist.
LEXIS 122695, 2010 WL 4602935 (D.Ariz., Nov. 5, 2010) (motion to compel
filed over a month after the deadline for bringing discovery disputes to the court's
attention denied as untimely); Christmas v. MERS, 2010 U.S. Dist. LEXIS 79137,
2010 WL 2695662 (D.Nev., July 2, 2010) (motion to compel filed after the
deadline for discovery and dispositive motions untimely); Oliva v. National City
Corp., 2010 U.S. Dist. LEXIS 56362, 2010 WL 1949600 (D.Nev., May 12, 2010)
(motion to compel discovery filed two months after close of discovery denied as
untimely); Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D.Nev. 1999)
(motion to compel filed 136 days after defendant's initial responses and close of
discovery was untimely).
In Days Inn Worldwide, Inc. v. Sonia Investments, 237 F.R.D. 395, 397 (N.D.Tex.
2006), a motion to compel discovery filed two weeks after an extended discovery
deadline expired was denied as untimely. In an comprehensive analysis of cases
throughout the federal judiciary, the district court concluded that numerous
"courts generally looked to the deadline for completion of discovery in
considering whether a motion to compel has been timely filed[,]" citing, among
many others, Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001)
(finding no abuse of discretion in denying a motion to compel discovery filed
after discovery closed and defendants had filed their summary judgment motion);
Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000) (finding no
merit to contention that district court's denial of discovery motion was error where
the motion was filed two months after the date set by the court for the completion
of discovery and plaintiffs gave no excuse for tardiness); Kalis v. ColgatePalmolive Co., 231 F.3d 1049, 1058 (7th Cir. 2000) (finding no abuse of
discretion in denying motion to compel filed after discovery closed and summary
judgment motion was filed); Ginett v. Federal Express, 166 F.3d 1213, 1998 WL
777998, at * 5 (6th Cir. 1998) (Table) (finding no abuse of discretion when the
trial court denied a motion to compel filed two months after the discovery

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deadline, because the plaintiff knew of the document at issue long before the
discovery deadline); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94
(1st Cir. 1996) (finding no abuse of discretion by the district court in denying
"what was clearly Appellants' untimely motion to compel document production"
where "Appellants waited more than one month after the second extended
discovery deadline had elapsed to properly request an order from the district
court").
Id. Thus, it is clear that the black-letter law throughout the federal courts is that discovery
motions must be filed prior to the deadline for the close of discovery. As just one example, the
court, the U.S. District Court for the Western District of Washington, where the subject subpoena
was issued and allegedly served, has also clearly held that discovery motions must be filed
before the discovery deadline and close of discovery. In Affiliated FM Ins. Co. v. LTK
Consulting Servs., 2012 U.S. Dist. LEXIS 73249 (W.D. Wash. May 25, 2012), that court ruled:
[Plaintiff] brought its motion after the deadline set by the court for bringing such
motions had expired. The motion, therefore, is untimely. Further, [Plaintiff] has
never explained its reasons for the delinquent filing. Untimely discovery motions
are disfavored and may be denied on this ground alone.
Id. citing Rogers v. Brauer Law Offices, PLC, 2011 U.S. Dist. LEXIS 93905, 12-15 (D. Ariz.
Aug. 22, 2011), supra.
Indeed and importantly, in a similar subpoena enforcement proceeding, before the U.S.
District Court for the Southern District of New York, in this case, where Plaintiff Dennis
Montgomery had timely served his motion to compel concerning subpoenas issued and served on
the publisher Simon & Schuster, which had rejected publication of Defendants Risens book
Pay and Price, the Honorable Denise Cole held that the ultimate decision on whether discovery
had closed preventing depositions rested with the underlying court; this court to be exact. In this
collateral proceeding, unlike here, Plaintiff had moved to compel well before the close of
discovery in this case on November 19, 2015. Judge Cole held:
I have before me a request to compel discovery in connection with some litigation
that's going on in Florida. I understand that as of now, there is a March trial date,
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and as of now, fact discovery closed in the underlying action on November 19. I
understand that there is a request for extension of that discovery deadline. I plan
to rule on the merits of the issues today. Obviously if the judge overseeing the
Florida litigation decides that all discovery in that case should end, I think
that would trump anything I do today . . .
Exhibit 2 Excerpt of Transcript of December 1, 2015 at lines 6-14 (emphasis added).
A discovery cut-off is just that. The last day of discovery is the last date for the
completion of all discovery . Shroyer v. Vaughn, No. 1:00 CV 256, 2002 WL 32144316 , at
*1 (N.D. Ind. July 10, 2002) (granting protective order from untimely discovery). Even a motion
to compel discovery filed four days before the close of discovery has been held to be untimely
and thus too late. See Ridge Chrysler Jeep, LLC v. Daimler Chrysler Servs. N. America, LLC,
Case No. 03 C 760, 2004 U.S. Dist. LEXIS 26861, at *13 (N.D. Ill. Dec. 29, 2004).
Motions to compel filed after the close of discovery are routinely deemed untimely.
Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001). See also Suntrust Bank v.
Blue Water Fiber, L.P., 210 F.R.D. 196, 200-01 (E.D. Mich. 2002) (finding that a district court
may properly deny a motion to compel discovery filed after the close of discovery, and noting
that numerous courts have denied tardy discovery motions where the moving party had all the
information it needed to timely file the discovery motion); Material Supply Intl, Inc. v.
Sunmatch Indus. Co., Ltd., 146 F.3d 983, 992 (D.C. Cir. 1998) (finding no abuse of discretion
when district court denied motion to compel as untimely when filed after the close of
discovery).1

Indeed, federal courts routinely and consistently look to the deadline for the
completion of discovery in considering whether a motion to compel has been timely filed.
See Mollinger-Wilson v. Quizno's Franchise Co., 122 Fed. Appx. 917, 920, 923, 2004 WL
2757941, at *3, *6 (10th Cir. 2004) (finding no abuse of discretion in district court's holding
that pro se plaintiffs' motion to compel depositions was untimely because the deadline for
discovery had expired, plaintiffs had not employed previous opportunities to take
depositions, and plaintiffs had presented inadequate proof that additional depositions were
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Defendants do not show good cause to move to depose Burgyan well after discovery had
closed, by nearly three weeks, nor can they. Defendants inexcusably waited for nearly three
weeks before filing their motion to compel. Its thus clear that Defendants untimely motion to
compel was filed more to harass the family and son-in-law of the Plaintiff, than for any
legitimate purpose. If this had been so, Defendants would have sought the deposition of
Plaintiffs son-in-law much earlier, as discovery was open as early as September 10, 2015,
notwithstanding the lateness of their motion to compel.
Given these facts and circumstances, Plaintiffs Motion for Protective Order should
respectfully be granted, as Defendants waited too long to file their motion to compel, well after
discovery had closed, and have not demonstrated good cause, as the case law firmly requires,
why the tardiness should be rewarded. To allow this deposition to proceed, which obviously is to
harass Plaintiff and his family, would be unjust and unfair. Plaintiff has, as this Court has been
made aware, been suffering from a potentially fatal brain aneurism and the untimely stress put on
him and his family, for tactical purposes, is simply not respectfully warranted. If the deposition
of Plaintiffs son-in-law had been needed, Defendants could have sought to take it since
September 10, 2015 when discovery had commenced, and if not then months thereafter; not at
this 13th hour.
Dated: February 25, 2016

Respectfully Submitted,

necessary); Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001) (finding no
abuse of discretion in denying a motion to compel discovery filed after discovery had closed
and defendants had filed their summary judgment motion); Rossetto v. Pabst Brewing Co.,
217 F.3d 539, 542 (7th Cir. 2000) (finding no merit to contention that district court's denial
of discovery motion was error where the motion was filed two months after the date set by
the court for the completion of discovery).

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/s/ Larry Klayman


Larry Klayman, Esq.
D.C. Bar No. 334581
2020 Pennsylvania Ave. NW, Suite 800
Washington, DC 20006
Tel: (310) 595-0800
Email: leklayman@gmail.com

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this February 25, 2016 a true and correct copy of the
foregoing Reply was filed with the Court through the Courts Electronic Case Filing system, and
will be delivered electronically to all counsel for the Defendants who have entered an appearance
in this case through the ECF system, including:
Sanford Lewis Bohrer
Brian Toth
Holland & Knight, LLP Suite 3000
701 Brickell Ave Miami, Florida 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.