Professional Documents
Culture Documents
I.
INTRODUCTION
In April 2015, Plaintiff, citing his health, asked the Court to fast-track this action. The
Court obliged, and placed this case on the short end of the Expedited Track. Given Plaintiffs
request and his stated desire to resolve this action quickly, one would have expected Plaintiff
readily to produce relevant, non-privileged information requested in discovery. Plaintiff did not
do so. Instead, he opted to withhold critical information and to serve, in Judge Goodmans
words, a remarkable series of responses that [he] ha[s] never seen before, given the
exceptions, and caveats, and carve-outs, and qualifications. Ex. A: Hrg Tr. 49:1921, Aug.
21, 2015; see also id. 50:13 ([The] general format of responding violates the discovery
rules applicable in this case.). It is thanks only to Judge Goodmans August 22 ruling, ECF No.
107a ruling that, for reasons set forth in Defendants Motion to Modify, ECF No. 100, took
time to obtainthat Plaintiff is finally required to produce critical discovery that Defendants
requested months ago.
The result of all this means Defendants cannot fully and fairly defend themselves by
September 16the discovery-completion date. Since August 22, Plaintiff has produced
additional documents. But he has not produced all of them. And it is unknown if and when he
will produce the most critical piece of discovery Defendants have soughtthe software that lies
at the heart of Plaintiffs case. Moreover, Defendants must review all new discovery and
determine if other investigation based on itsuch as expert review of the software and continued
deposition of Plaintiff about the softwarewill be required. Complicating matters further,
Plaintiff, on August 28, unilaterally noticed six depositions to occur during the last two weeks of
the discovery period, including on the days of the Jewish New Year. Even if these depositions
were to proceed as noticed, preparing for and participating in them further impedes Defendants
ability to defend this action within the existing deadlines. 1
For these reasons, good cause exists to modify the Scheduling Order. Defendants seek a
two-month extension of the discovery-completion date, a corresponding extension of the
dispositive-motion deadline, and a continuance of the trial date, whichif the Court were to
deny the Motion to Dismiss or Transfer, ECF No. 52would provide the parties and the Court,
respectively, sufficient time to brief and decide dispositive motions. The request is a modest
one: taking the case off the Expedited Track and placing it on the shorter end of the Standard
Track applicable to trials of this expected length (estimated by all parties to last seven to ten
days), particularly given the number of witnesses who may be called to testify at trial. 2 It would
remedy the two-month delay in this action caused by Plaintiffs objections to producing
discovery. And it would prevent the prejudice that Defendants would suffer if forced to defend
this case under the existing schedule. The Court should grant Defendants Motion to Modify.
II.
ARGUMENT
Below, Defendants will first address the August 21 hearing before Judge Goodman and
the August 22 order that he entered. Then they will discuss Plaintiffs response in opposition to
the Motion to Modify. Last, Defendants will state why modification is warranted.
A.
Today, as required by Judge Goodmans discovery procedures, see ECF No. 48, Defendants
counsel met and conferred with Plaintiffs counsel about their objections to these depositions,
and they will timely notice these objections for a hearing before Judge Goodman.
2
Each of Plaintiff and Defendants listed 50 or more witnesses on their witness lists exchanged
on August 12, 2015 as required by the Scheduling Order.
2
July 15. 3 At the hearing, which occurred the day after Defendants counsel deposed Plaintiff,
Plaintiffs counsel confirmed what Plaintiff testified about at his depositionthat on August 18
or August 19, Plaintiff, without seeking leave of court or informing Defendants, turned over to
the Federal Bureau of Investigation 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 Plaintiff in
this action. Judge Goodman agree[d] with [Defendants] that the software is highly relevant for
the case. Hrg Tr. 32:2324. And so Judge Goodman order[ed] Mr. Montgomery to turn over
that software and to take advantage of his right of continued access to nonclassified
information. Id. 79:2480:1. On August 22, in a written order, Judge Goodman ordered
Plaintiff 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. Post-Discovery Hearing Order 6, ECF No. 107. 4
Judge Goodmans order extended beyond just the software. He also ordered Plaintiff to
produce additional discovery that Defendants had soughtamong other things, bank records
indicating the location of the bank where Plaintiffs social security payments for disability are
directly deposited, id. 1, all responsive documents from 2003 to the present that he has in his
custody or control, including, but not limited to, bank records, 1099 forms, W2 forms, etc., id.
2, all medical records that have not yet been produced from April 2014 through the present, id.
3, and all documents concerning Defendants request for production number 7 about
communications with persons who know about the software and of its location, which would
Plaintiff first served his responses and objections to Defendants discovery requests on July 1.
Plaintiffs counsel has informed the general counsel of the FBI and an Assistant U.S. Attorney
of this directive. See Letter from Larry E. Klayman to James A. Baker and Deborah Curtis (Aug.
26, 2015), ECF No. 108-1.
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now include documents related to the disclosure and production of the subject software to the
FBI, id. 5.
Plaintiff must comply with these rulings by or before September 4. See id. 23.
However, as Judge Goodman recognized, there are practical difficulties in quickly obtaining the
software, given the fact that Mr. Montgomery did not keep a copy. Hrg Tr. 80:1315. And,
during a meet-and-confer phone conversation between Plaintiffs counsel and Defendants
counsel today, Plaintiffs counsel stated that he would be objecting to paragraph 5 of Judge
Goodmans order. Thus, it is unclear when Plaintiff will actually be able to produce a copy of
the software (and other important information relating to it) so that, among other things,
Defendants expert, if necessary, can analyze the software.
In regard to the request that Plaintiff produce all the tests the government performed that,
he claimed, validated the software (Request No. 9), Judge Goodman also ordered Plaintiff to
either identify the Bates number of the tests he said he had produced or produce the test(s) by
August 28, 2015. Post-Discovery Hearing Order 4. Plaintiff did not cite any Bates number for
previously produced documents but, instead, producedfor the first timeone report of a test
the government performed in June 2003 on one type of software. This late production may
require follow-up deposition questions to Plaintiff as well as third-party and expert discovery.
B.
Plaintiffs response in opposition to the Motion to Modify, ECF No. 105, filed a few
hours before the hearing before Judge Goodman but which Judge Goodman had already
reviewed, Hrg Tr. 4:145:2, provides no reason not to grant the Motion to Modify. Without
citing any evidence of his own, Plaintiff essentially just disagreed with the factual assertions
underlying Defendants request. For example, Plaintiff stated he could not produce top-secret,
classified information such as the software, because it is classified information that even
Plaintiffs counsel has not and cannot review. Pl.s Resp. 1. But Plaintiff cited nothing to show
that such information (including the software) is, in fact, classifiedan assertion that, at any
rate, the U.S. government has not made and courts have rejected. See Defs. Pre-Hrg Mem. 2
3, ECF No. 94. 5 Plaintiff also stated he had produced roughly 30,000 pages of documents
including but not limited to thousands of pages of health records. Pl.s Resp. 2. But he had not
(and still has not) produced all relevant documents until ordered by Judge Goodman
conveniently after his deposition. At any rate, again to use Judge Goodmans words, so what?
If you produce 50,000 documents and you still have 45,000 documents that you have not
produced, I am not particularly impressed by the 50,000 number. Hrg Tr. 25:710. And
Plaintiff contends he has produced letters from government sources which he legally was
able to do. Pl.s Resp. 2. But this, too, is just an unsupported assertion; Plaintiff has come forth
with no authority showing what he legally can or cannot produce. 6 At bottom, Plaintiff has
essentially asked the Court to take him at his word when he says that he has completely
cooperated in discovery to the extent he legally can. Judge Goodmans order directing Plaintiff
to produce more documents and information (including the software at the core of this case)
refutes that plea, and Defendants are entitled to verify Plaintiffs assertions through discovery.
Shifting focus, Plaintiff does at least cite the good-cause standard set forth in Sosa v.
Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998), which precludes modification unless
5
Judge Goodman: I read that opinion where the court concluded that the software was not
classified and ordered Montgomery to turn it over. And when he refused to do it, the judge held
him in contempt and he, ultimately, entered into a consent and later filed for bankruptcy. So I
am aware of that history. Hrg Tr. 30:1823.
6
The Department of Justice lawyers who have appeared in the court cases involving Plaintiffs
software in Nevada, California, and Arizona have been notified of the discovery dispute in this
case and, to date, have chosen not to appear. See Defs. Pre-Hrg Mem. 3 & n.16.
5
the schedule cannot be met despite the diligence of the party seeking the extension. But he
addresses none of Defendants arguments about why that standard is met in this case. Instead,
Plaintiff resorts to accusing Defendants of heartlessly trying to drag this case out with the
potential that Plaintiff will be either severely debilitated or die by the time of trial. Pl.s Resp.
3. Defendants have done no such thing, but Plaintiff appears to use his health as an excuse for
his convenience. Plaintiff has cited his health to a Nevada criminal court judge as recently as the
day before his deposition in this case in Miami as the reason he could not appear to defend the
criminal prosecution in Nevada, pending since 2010, for passing bad checks to casinos. His
criminal defense counsel told the Nevada court on August 19, 2015, that Montgomery is not
able to travel and [he]s up in Washington State in the Seattle area right now, recovering. Ex.
B: State of Nevada v. Montgomery, No. C-26874; Tr. 2:1719 (Nev. D. Ct. Clark Cty., Aug. 19,
2015). In fact, Montgomery was not in Washington on August 19; he had already traveled from
Washington to Florida on August 16 and appeared for his deposition in Miami on August 20, the
day after his counsel told the Nevada judge he was too ill to travel. 7
Nothing that Plaintiff put forth in his response should give this Court pause about
modestly modifying the Scheduling Order.
C.
As things stand, all discovery must be completed by September 16; all dispositive
motions are due by September 21; and trial is scheduled to begin November 30. See ECF No.
48. This is not enough time within which Defendants can defend the case adequately and fairly.
The modest modification of the Scheduling Order that Defendants are requesting would remedy
7
Plaintiff rejected Defendants offers to take his deposition in Seattle, rather than Miami, and to
put off his deposition in the event Judge Goodman ordered further discoverywhich the Judge
did the next dayto avoid having to appear a second time for deposition. Hrg Tr. 71:12, 15
21; Pl.s Resp. 34.
6
to the best extent possible the discovery log-jam caused by Plaintiffs (now-overruled)
objections. It would allow Defendants to receive and analyze the additional discovery produced
by Plaintiff, and to determine what other discovery based thereon would be needed. It would
give the government a reasonable amount of time to produce the software to Defendants, and for
Defendants expert, if necessary, to analyze it and to prepare a report. It would permit remaining
depositions to be prepared for and conducted in an orderly fashion. And it would provide, if
necessary, sufficient time for preparing, filing, and deciding any dispositive motions.
III.
CONCLUSION
For the reasons set forth herein and in the Motion to Modify, the Court should modify the
Scheduling Order as follows: (a) extend the discovery-completion date until November 20; (b)
extend the dispositive-motion deadline for December 4; (c) schedule calendar call for April 5,
2016, for the two-week trial calendar beginning April 18, 2016; and (d) modify all other
deadlines accordingly. 8
Because Defendants counsel deposed Plaintiff on August 20, Defendants request for a hearing
for August 17 or August 18 is now moot.
7
EXHIBIT A
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MIAMI DIVISION
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CASE NO.:
15-cv-20782-JEM
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DENNIS L. MONTGOMERY,
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Plaintiff, )
v.
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JAMES RISEN, et al.,
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Defendants. )
_________________________/
Pages 1 - 97
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APPEARANCES:
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On behalf of the Plaintiff:
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APPEARANCES CONTINUED:
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Transcribed By:
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The Honorable
THE COURT:
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Plaintiff.
MR. KLAYMAN:
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MS. HANDMAN:
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And with me --
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MR. TOTH:
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THE COURT:
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Please be seated.
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And I know
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from a filing that Mr. Klayman made this afternoon with another
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Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5 of 99
correct?
MS. HANDMAN:
THE COURT:
deposition?
MS. HANDMAN:
THE COURT:
was taken in Miami and that would explain why all the
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MR. KLAYMAN:
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THE COURT:
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discovery issues.
And I have to tell you that I read all the papers
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submission today that Mr. Klayman took the position that I have
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MR. KLAYMAN:
Honor.
and pain.
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We provided all
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where they wanted to know why certain years were not available
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satisfied.
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Montgomery has, for more than a year, has been coming forward
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The FBI
not, but in any event, what has been alleged in the pleadings.
that they have said to this Court this case can be dismissed
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government.
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classified information.
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because they have said it right up front that they are not
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difficulty these days for that and you just can't do it.
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information.
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THE COURT:
So
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MR. KLAYMAN:
THE COURT:
MR. KLAYMAN:
to them.
THE COURT:
When?
MR. KLAYMAN:
ago.
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whistleblower.
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THE COURT:
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Defendant there.
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please, and allow the Defendant to come in and we will let the
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MR. Klayman:
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THE COURT:
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MR. KLAYMAN:
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anybody's way.
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(Recess.)
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to you.
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THE COURT:
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Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 9 of 99
discovery.
MR. KLAYMAN:
THE COURT:
Correct.
the FBI so the FBI could confirm one way or the other if the
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MR. KLAYMAN:
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THE COURT:
That is correct.
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over three days ago, did either you, or Mr. Montgomery, keep a
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MR. KLAYMAN:
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THE COURT:
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MR. KLAYMAN:
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THE COURT:
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No copies?
It was just the software and
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MR. KLAYMAN:
it myself.
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itself?
MR. KLAYMAN:
THE COURT:
MR. KLAYMAN:
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like happened with NSA and Edward Snowden and others have been
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THE COURT:
question, sir.
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MR. KLAYMAN:
Okay.
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THE COURT:
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-- with my question.
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lot of rhetoric.
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I do not need a
MR. KLAYMAN:
Sure.
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THE COURT:
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So
Tell me
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Please do it without
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citizens.
THE COURT:
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for.
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for.
So is the
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It,
MR. KLAYMAN:
It would include --
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 1211
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THE COURT:
MR. KLAYMAN:
listed.
THE COURT:
MR. KLAYMAN:
I have never
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THE COURT:
or Mr. Montgomery?
MR. KLAYMAN:
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THE COURT:
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MR. KLAYMAN:
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THE COURT:
Mr. Montgomery.
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question.
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was going to ask, but you really need to let me finish asking
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the question.
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THE COURT:
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Sure.
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THE COURT:
Am I right?
Correct.
Okay.
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the FBI working under the aegis of FBI director James Comey.
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turned over.
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THE COURT:
All right.
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situation?
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MR. KLAYMAN:
There is no lawsuit.
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THE COURT:
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in his chambers?
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I know him to be
MR. KLAYMAN:
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THE COURT:
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MR. KLAYMAN:
THE COURT:
Royce C. Lamberth.
Right.
was filed against Mr. Risen and other defendants, you contacted
Judge Lamberth?
MR. KLAYMAN:
THE COURT:
form of a pleading?
Correct.
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MR. KLAYMAN:
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THE COURT:
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THE COURT:
How
In chambers?
Yes, with Mr. Montgomery.
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No.
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THE COURT:
approximately when?
Let me see.
Maybe I have it on my --
THE COURT:
THE COURT:
Of this year?
Yes.
Judge Lamberth?
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MR. KLAYMAN:
I could go back and check.
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THE COURT:
All right.
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the software and the information to the FBI three days ago?
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MR. KLAYMAN:
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THE COURT:
Correct.
Okay.
Did he pat
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you on the back and say, Mr. Klayman, sounds like a good idea
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to me, go to it?
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document?
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THE COURT:
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No.
Because I have
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before him in the 1990s and after that was all over I got to
And
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THE COURT:
All right.
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turn it over?
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MR. KLAYMAN:
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Did the
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meetings.
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And assistant
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THE COURT:
Jointly?
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MR. KLAYMAN:
Jointly.
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THE COURT:
MR. KLAYMAN:
THE COURT:
Correct.
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MR. KLAYMAN:
in Miami, in Miramar.
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THE COURT:
in person?
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THE COURT:
Correct.
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government.
So if there is anything that we need from what was
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THE COURT:
a contract, something?
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produced.
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the documentation.
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do have.
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classified.
Okay.
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THE COURT:
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determined.
THE COURT:
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MR. KLAYMAN:
will take for the FBI to determine one way or the other to
fact, classified?
MR. KLAYMAN:
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believe that he still has top secret clearance and it was never
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revoked.
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apologize.
THE COURT:
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question.
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THE COURT:
Yes, there is --
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MR. KLAYMAN:
THE COURT:
I'm sorry.
access.
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is that the FBI is moving with great speed on this because Mr.
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And that's
He
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that the FBI will be moving with all due diligence, with
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general adjectives.
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you think?
Are we
What do
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MR. KLAYMAN:
yet.
THE COURT:
court, the first time that the Defense is learning that Mr.
for months to the FBI, or did they know about it before this
hearing?
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MR. KLAYMAN:
Montgomery.
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THE COURT:
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have asked some of the same questions that I asked and perhaps
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All right.
for a minute.
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THE COURT:
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MR. KLAYMAN:
Yes.
If possible.
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decided.
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you know, we made reference to the fact that he may have had
that.
also have the deposition pages and I can cite them to Your
information.
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to that.
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So they
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information.
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Martinez, you can dismiss this based upon a privilege that this
was all done from public information that has already been
produced.
Judge
THE COURT:
So it
case that Mr. Risen, in his book, published the point that your
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software?
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claim.
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THE COURT:
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MR. KLAYMAN:
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THE COURT:
It's a claim.
Okay.
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defense lawyers.
break up AT&T.
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discovery.
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And what I
The FBI
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an ordinary case.
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I'm
I am
This is not
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part of the allegations of this case, but the other stuff that
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THE COURT:
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conclusion that the software is bogus and did not work, even if
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classified.
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government.
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Explain to me why --
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MR. KLAYMAN:
So to me
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THE COURT:
argument.
documents.
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They say
I produced a million
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documents, but there's one document that you did not produce
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many documents --
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THE COURT:
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I am not particularly
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There is 50,000
point.
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MR. KLAYMAN:
THE COURT:
MR. KLAYMAN:
Of course.
point, if I may?
THE COURT:
Sure.
MR. KLAYMAN:
is what I am writing.
Of course it
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that he would not correct what he was writing and he would not
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write it as Mr. Montgomery saw it, that he did not in any way
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history.
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And he demanded
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me legal fees.
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use Mr. Montgomery as a launching pad for his book that the
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against terror.
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He is not paying
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He did
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this.
classified information.
to Jeffery Sterling.
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Snowden.
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Government.
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Department lawyer.
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He is here.
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Montgomery was going to break the law and commit a crime that
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THE COURT:
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MR. KLAYMAN:
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THE COURT:
MR. KLAYMAN:
THE COURT:
Effectively, I said.
MR. KLAYMAN:
man and no one doubts that, but Mr. Risen has gotten himself
10
11
12
13
14
15
16
17
know, regrettably --
18
THE COURT:
19
You
20
21
22
positions.
23
24
25
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quite a long time and I am going to give you more time, but I
Have a seat.
MR. KLAYMAN:
THE COURT:
MS. HANDMAN:
8
9
Sure.
person.
THE COURT:
All right.
10
11
12
relevant because Mr. Risen said that he did not rely at all for
13
14
15
16
17
MS. HANDMAN:
18
THE COURT:
19
MS. HANDMAN:
Why?
Because as Your Honor correctly
20
pointed out, our Motion to Dismiss did not address one critical
21
22
23
24
25
And that
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 3130
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deal about mass surveillance and the NSA, that's another case
works or not.
And then,
10
11
we've heard today about Judge Lamberth, who I know well, too,
12
13
14
15
16
17
18
Notwithstanding
That was shocking,
THE COURT:
Right.
19
20
21
22
23
24
25
MS. HANDMAN:
So I am
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classified.
7
8
THE COURT:
I think
it is --
MS. HANDMAN:
10
11
12
13
14
15
16
17
18
19
20
that this hearing was going on, that the deposition was
21
yesterday.
22
23
24
25
very clear.
I just want to be
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 3332
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threatened.
THE COURT:
practicality.
11
THE COURT:
Right.
the software.
13
MS. HANDMAN:
14
THE COURT:
16
So it didn't come
10
15
The government,
12
He
Correct.
17
18
19
20
21
22
23
24
All right.
25
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Montgomery's possession.
for many, many months before the lawsuit was even filed and did
10
11
worked or not?
12
MS. HANDMAN:
13
14
15
16
17
Montgomery has said and Mr. Klayman has said today, first of
18
all, Mr. Klayman said that Mr. Montgomery retains access to the
19
software.
THE COURT:
20
21
22
23
24
25
rights.
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MS. HANDMAN:
So it
10
11
12
13
14
15
16
THE COURT:
17
18
MS. HANDMAN:
19
THE COURT:
I apologize.
20
21
question.
22
MS. HANDMAN:
23
THE COURT:
Yes.
24
25
I know
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evaluate it.
a Motion to Compel.
production.
MS. HANDMAN:
THE COURT:
Correct.
10
11
12
like me to do.
13
14
15
the FBI?
16
17
18
19
20
21
the software.
22
THE COURT:
23
MS. HANDMAN:
24
access to have him seek access to his own software from the FBI
25
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happened.
THE COURT:
MS. HANDMAN:
and in Arizona.
THE COURT:
10
11
12
13
lawyer.
14
AUSA in the D.C. office of the U.S. Attorney's Office and not
15
16
17
18
19
20
21
revealed.
22
23
24
25
notified them of the basic -- and I will tell you why this does
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 3837
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asking him if Mr. Montgomery could come and appear and testify
not ruled on that last I looked and Mr. Klayman may know if
10
11
12
13
14
15
turned over the only copy he had of his own software to the FBI
16
17
18
19
20
right?
21
And I suspect it
MS. HANDMAN:
22
23
24
25
was under subpoena here, I think Your Honor should order it and
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 3938
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THE COURT:
10
11
this lawsuit?
12
MR. KLAYMAN:
13
14
15
16
But let me
17
18
19
20
21
22
THE COURT:
23
24
25
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specialty.
3
4
who had the courage -- he's a very honest man as I am sure you
have read -- who had the courage to even tell George W. Bush
10
11
director.
12
So this is inconsequential.
He's
13
14
15
16
17
18
19
20
21
22
23
24
25
And
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 4140
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3
4
everybody.
THE COURT:
not classified?
10
MR. KLAYMAN:
11
THE COURT:
12
MR. KLAYMAN:
13
THE COURT:
14
MR. KLAYMAN:
You didn't?
No.
15
16
17
18
19
back.
20
21
22
23
THE COURT:
We cannot compromise
24
25
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2
enter a written order in which the judge said that the very
MR. KLAYMAN:
I don't know.
What I do know is what I
10
11
Justice Department.
12
13
Montgomery's house.
14
15
THE COURT:
16
17
18
19
20
MS. HANDMAN:
21
22
23
And again, Mr. Klayman, in the Ninth Circuit last week said --
24
25
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THE COURT:
Okay.
minute ago.
10
MR. KLAYMAN:
11
THE COURT:
12
13
14
15
16
17
18
19
MR. KLAYMAN:
20
21
casting blame.
22
23
decisions here.
24
25
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is classified or not.
information.
looked at it.
misspoke and I will correct it, but I did not take that as a
10
Okay.
MS. HANDMAN:
11
on his own behalf in Arizona on the same day the same language
12
13
14
15
16
17
18
19
20
21
22
And in
23
24
25
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2
dismissal.
So that, I think, if we don't -- I don't know that
THE COURT:
10
11
12
13
14
to do in that.
15
MS. HANDMAN:
16
17
18
19
20
THE COURT:
21
let's do that.
22
23
So
24
25
over which would, in effect, require him to contact the FBI and
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we have to wait for the FBI to decide one way or the other if
it is classified.
MR. KLAYMAN:
Correct.
10
11
litigation.
12
13
14
15
16
17
thing.
18
19
20
21
THE COURT:
22
THE COURT:
23
MR. KLAYMAN:
24
25
That's one
THE COURT:
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comment and, then, the implicit inference is, well, maybe there
this hearing.
memoranda that you and your organization had filed in which you
concede that the Nevada judge found that the software was not
10
classified.
11
12
court this afternoon when you said you did not know one way or
13
14
classified.
15
Then,
16
you tell me that maybe some other lawyer prepared the memo and
17
18
19
20
it, sir, suggesting, well, maybe some other Nevada opinion came
21
22
23
24
25
MR. KLAYMAN:
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THE COURT:
Okay.
MR. KLAYMAN:
No one knows.
THE COURT:
MR. KLAYMAN:
10
THE COURT:
And I agree
11
12
13
14
15
16
correct?
17
MR. KLAYMAN:
Correct.
She's an
18
19
criminal division.
He is chief of the
20
THE COURT:
21
MR. KLAYMAN:
22
THE COURT:
23
MR. KLAYMAN:
24
25
Mr. Malice?
M-A-L-I-C-E.
First name?
I don't remember the first name.
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THE COURT:
All right.
over this software and other materials to the FBI, you advised
MR. KLAYMAN:
THE COURT:
Correct.
10
MR. KLAYMAN:
11
THE COURT:
Correct.
12
13
14
MR. KLAYMAN:
15
16
pending.
17
18
19
THE COURT:
20
21
22
THE COURT:
23
24
25
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Handman?
MS. HANDMAN:
10
request.
11
THE COURT:
I read it.
12
13
14
interrogatory response.
My gosh, it was like a lawyer's opinion letter
15
16
where you cannot even figure out what they are saying.
17
18
saying this.
19
Well,
20
21
22
My gosh.
23
24
25
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5150
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aware of that.
And I
I am
Income tax
MS. HANDMAN:
10
11
12
discovery they have produced because they have not produced all
13
14
15
16
17
of them was the person that Mr. Montgomery worked for, for more
18
One
19
20
21
22
responses.
23
And
24
Income tax --
25
THE COURT:
Excuse me.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5251
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disputes.
category of documents.
of documents.
It's a couple
other sources.
do we know?
10
11
12
isn't here -- but it may be that the opposing party, the one
13
14
15
16
five documents.
17
18
19
20
21
22
Who knows?
24
MS. HANDMAN:
Yes.
Maybe
Maybe you
23
25
All right.
I cannot say,
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5352
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THE COURT:
Sure.
MS. HANDMAN:
here.
10
11
THE COURT:
all discovery.
12
13
MS. HANDMAN:
yesterday.
14
THE COURT:
Okay.
15
MS. HANDMAN:
16
17
18
19
in Washington State.
20
21
22
23
last week he said that he was too ill to travel to Nevada from
24
25
Just
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5453
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country to Miami to pursue his own lawsuit and sit for seven
hours.
And he
the domicile.
10
No written document
He says he
11
12
insurance?
13
14
CitiBank.
I said, do
I don't know.
It is
I don't know.
We are entitled to have that information.
15
That's
16
17
18
address of his friend where he came on Monday and is, you know,
19
using a room.
20
21
22
23
residing here.
24
25
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THE COURT:
He says he
10
person.
I am plotting.
11
12
person who can send text messages and listen to music and
13
I am not a 25-year-old
14
MS. HANDMAN:
I understand.
15
THE COURT:
16
17
It is relevant.
18
19
20
21
22
concerning domicile.
23
24
MR. KLAYMAN:
25
THE COURT:
I think and I
Correct.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5655
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me to do?
believe him.
think that?
MS. HANDMAN:
deposited to Florida.
10
11
THE COURT:
Stop.
12
13
reflect one way or the other the location of the bank where Mr.
14
15
yes or no?
MR. KLAYMAN:
16
17
Honor.
THE COURT:
18
19
No.
Produce
those documents.
20
MR. KLAYMAN:
21
22
23
24
controversy.
25
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5756
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Now
THE COURT:
Wait a second.
that she made that your client has not produced the bank
10
Is that correct?
11
MR. KLAYMAN:
That is correct.
12
13
14
15
he is getting it.
16
17
18
19
20
21
22
23
24
25
He has a
Your Honor.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5857
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3
4
THE COURT:
He put off
records, Mr. Klayman, which would show the location of the bank
10
11
12
13
MR. KLAYMAN:
14
15
16
Okay.
Could I ask?
We would not
17
18
19
20
once a month.
21
Probably
22
The key
23
point here is the location of the bank and the fact that that's
24
25
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 5958
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Mr.
Fine.
MS. HANDMAN:
have a lease.
10
11
THE COURT:
12
MS. HANDMAN:
13
14
15
16
17
18
19
20
21
22
Counsel.
23
24
broker or the agent that you have retained in order to help you
25
Identify the
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 6059
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question.
document request.
10
MS. HANDMAN:
11
THE COURT:
12
Okay.
documents?
13
MR. KLAYMAN:
14
15
16
THE COURT:
17
Okay.
If
18
19
20
21
MS. HANDMAN:
22
THE COURT:
Correct.
23
24
25
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assisted living?
MS. HANDMAN:
like the phone records to show us when indeed the Florida phone
10
11
And we would
12
THE COURT:
13
14
15
16
Miami?
17
MR. TOTH:
18
MS. HANDMAN:
19
20
21
THE COURT:
Okay.
22
23
something and find fault with their production when you only
24
25
I don't know,
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 6261
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but I cannot fault Mr. Klayman for not producing documents that
MS. HANDMAN:
As you
know, Your Honor, we are under this extreme deadline and just
merely the fact that this morning Mr. Klayman filed something
8
9
10
11
12
13
14
THE COURT:
15
are going back to the software and I don't want you to do that.
16
17
18
I may.
19
THE COURT:
20
MS. HANDMAN:
21
THE COURT:
22
project yet?
23
anything?
24
25
Not yet.
No.
MR. TOTH:
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information that --
THE COURT:
yet.
mentioned was phone records for the Florida phone because you
want to see when the Florida phone account was opened, or who
10
11
MR. KLAYMAN:
either.
12
THE COURT:
13
Miss Handman.
14
15
first deal with the threshold issue of whether they have even
16
been requested.
17
18
19
20
21
22
23
24
25
MS. HANDMAN:
Is
Probably
All right.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 6463
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requested.
MS. HANDMAN:
Yes.
deposition Mr. Montgomery said he did not have tax returns from
8
9
10
years claiming that this was an audit status and claiming that
11
12
13
THE COURT:
14
is completely false.
15
16
17
returns.
We made a broader request, Your
Honor.
20
THE COURT:
21
MS. HANDMAN:
22
THE COURT:
23
Maybe he is
MS. HANDMAN:
18
19
Passover Seder.
My gosh.
Sorry.
24
25
certain years and for the missing years, 2008 through 2012.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 6564
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Why?
MS. HANDMAN:
10
the tax returns, there are other ways of producing records that
11
reflect income.
12
THE COURT:
13
14
15
16
request.
17
THE COURT:
Yes.
18
MS. HANDMAN:
19
20
salary, and benefits, and the source of that income, salary and
21
22
23
24
forms, W-2 forms, and schedules for tax years 2008 to 2014,
25
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3
4
was.
MR. KLAYMAN:
THE COURT:
10
Yes.
MR. KLAYMAN:
11
12
relevance of that?
13
14
THE COURT:
15
16
17
18
19
What is the
MS. HANDMAN:
20
21
22
23
24
25
founded in 1998.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 6766
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2
MR. KLAYMAN:
3
4
legitimately to it.
don't know of any case that you have to produce your financial
THE COURT:
All right.
So on this particular
10
11
12
13
However, unless --
14
Strike that.
15
16
17
18
19
20
21
22
statements.
23
24
25
MS. HANDMAN:
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 6867
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MR. KLAYMAN:
second?
THE COURT:
MR. KLAYMAN:
time.
Medical records?
No, the issue of the financial
THE COURT:
MR. KLAYMAN:
10
I believe for --
I'm sorry.
I didn't
hear you.
11
THE COURT:
12
MR. KLAYMAN:
13
Okay.
14
15
16
of a hat, but we did produce all of our tax returns from 2003
17
to 2008.
18
THE COURT:
19
20
21
22
25
Financial --
MR. KLAYMAN:
23
24
I understand.
weeks.
THE COURT:
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over and if he does not have them, then, you cannot turn them
over.
I mean, that's --
MR. KLAYMAN:
I understand.
THE COURT:
-- reality.
All right.
Medical records.
MS. HANDMAN:
10
11
12
13
14
15
16
17
in medical expenses and past and future and all the work that
18
19
20
23
21
22
And then, a
complaint.
THE COURT:
All right.
24
25
MS. HANDMAN:
Right.
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for that.
8
9
Even
10
11
aneurism was first diagnosed in 2010 and two doctors said that
12
13
And he
14
15
16
of all the records that he has that relate to his claim that
17
18
THE COURT:
19
through Mr. Klayman has produced medical records, but you say
20
it is not complete.
21
are, number one, anything after April of this year and before
22
23
24
25
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MR. KLAYMAN:
We have nothing to
hearing where Judge Martinez, she mocked his health with regard
to a brain aneurism.
10
11
frankly.
12
13
feeling bad and wants to take a break, she says to him, well,
14
15
16
17
18
19
20
MR. KLAYMAN:
21
THE COURT:
22
23
all medical records that have not yet been produced from April
24
25
MS. HANDMAN:
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point.
THE COURT:
We
My point
videotaped deposition?
10
MS. HANDMAN:
11
THE COURT:
Yes, it was.
12
13
14
15
not occur.
16
17
20
MS. HANDMAN:
Not Seattle.
21
MR. KLAYMAN:
22
THE COURT:
23
MR. KLAYMAN:
24
THE COURT:
25
MR. KLAYMAN:
18
19
We chose
Miami.
Okay.
For a lot of different reasons.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 7372
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And you know, one of the things that is evident here, you know,
understand that.
THE COURT:
Okay.
MR. KLAYMAN:
you know, they've got a former FBI agent trailing every one on
contentious it is.
10
11
THE COURT:
That is how
tailing you?
MR. KLAYMAN:
13
I don't care.
15
And
12
14
Okay.
about my history.
I don't know.
MS. HANDMAN:
It doesn't matter.
16
17
18
19
20
case and stayed the discovery until he had done so and the
21
22
23
THE COURT:
24
MR. KLAYMAN:
25
THE COURT:
It is not amusing.
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MR. KLAYMAN:
I understand.
with Mr. Ickes, too, on the level of Cheryl Mills and Huma -- I
THE COURT:
discovery case.
10
11
12
13
14
returns.
15
16
MS. HANDMAN:
17
categories.
18
19
20
software.
21
THE COURT:
Yes.
22
MS. HANDMAN:
23
THE COURT:
24
MS. HANDMAN:
25
THE COURT:
And --
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 7574
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MS. HANDMAN:
5
6
THE COURT:
MR. TOTH:
THE COURT:
MR. TOTH:
10
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interrogatory 10 above.
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THE COURT:
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All right.
Referred to
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but while you were saying that, Miss Handman was vigorously
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MR. KLAYMAN:
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THE COURT:
25
Well, I disagree.
One party
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will say, yes, we turned it over and another party says we did
not.
Is your paralegal a little more familiar with the
3
4
not have complete familiarity with each and every document and
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MR. KLAYMAN:
lawyers.
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THE COURT:
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turned over?
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MS. JAMES:
15
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THE COURT:
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MS. JAMES:
In my possession.
20
THE COURT:
MS. JAMES:
21
That is correct.
possession?
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validating.
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THE COURT:
All right.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 7776
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judge that they have turned over all of the tests and reports
over.
And
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of a stone.
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Handman, or not, there are certain other steps that you can
14
15
the jury will find it preposterous that he does not have these
16
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about.
Who knows?
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MS. JAMES:
Yes.
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THE COURT:
23
24
over.
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if it turns out that, whoops, you made a mistake and you did
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good faith you thought that you did, then, obviously turn it
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MR. TOTH:
point?
THE COURT:
MR. TOTH:
Yes.
Our request number 7 is well, I think
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number 9 above.
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THE COURT:
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MR. TOTH:
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THE COURT:
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Excuse me.
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Mr. Klayman --
number 7.
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THE COURT:
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MR. TOTH:
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interrogatory 9 above.
MR. KLAYMAN:
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THE COURT:
interrogatory.
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MR. TOTH:
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THE COURT:
Right.
So if you have a document showing the
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request.
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produced all the documents, but now that I have flagged this
10
issue for you, maybe you realize that you have not quite yet
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Unless I am wrong, my
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MR. KLAYMAN:
16
17
All right.
So your paralegal,
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there to track those down and turn them over to the Defense
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and you may make that position known, but right now that is
going to be my order and you will do what you see fit under the
circumstances.
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MR. KLAYMAN:
Honor?
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THE COURT:
10
11
appropriate.
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software, given the fact that Mr. Montgomery did not keep a
15
copy, but for the time being, I am going to enter that order
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So he can use
information.
MR. KLAYMAN:
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THE COURT:
I understand.
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this hearing.
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MR. KLAYMAN:
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is to give it to an expert.
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THE COURT:
Understood.
MR. KLAYMAN:
well.
THE COURT:
do.
(Recess.)
10
THE COURT:
11
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I need to take
13
14
situation.
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software.
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counsel on that letter and you will file that letter with the
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Wednesday, please.
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MR. KLAYMAN:
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THE COURT:
discovery dispute.
MR. KLAYMAN:
night, and we copied the other side, a redacted e-mail that was
produced --
THE COURT:
MR. KLAYMAN:
THE COURT:
9
10
here.
Right.
Yes.
I got that.
11
MR. KLAYMAN:
12
THE COURT:
13
-- by the Defendants.
partner in --
14
MR. KLAYMAN:
15
MS. HANDMAN:
16
co-authored it.
MR. KLAYMAN:
17
18
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20
21
22
23
says:
24
with the source and left with a thumb drive with 20,000 pages
25
of documents.
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by Kemp, Clinton wing man Burkle, Navy sec, Conrad Burns and
others.
I took --
THE COURT:
10
I'm sorry.
11
12
13
MR. KLAYMAN:
Correct.
14
15
16
significantly.
17
difficulty.
18
Mr.
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25
he had them.
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turned over --
MS. HANDMAN:
THE COURT:
MS. HANDMAN:
THE COURT:
10
11
do not interrupt.
12
13
Understood?
14
MS. HANDMAN:
Yes.
15
MR. KLAYMAN:
20,000 pages.
16
So please
Okay.
I said
17
18
19
20
produced.
21
22
23
24
those documents.
25
THE COURT:
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20,000.
20,000?
MR. KLAYMAN:
Yes.
back and check the exact page numbers, but we only got a subset
of those documents.
THE COURT:
Yes.
MR. KLAYMAN:
Okay.
10
documents all totaled, not just the Risen documents, but other
11
documents.
12
THE COURT:
13
MR. KLAYMAN:
14
Pages, okay.
All right.
Not just the Flynn documents.
20,000 pages --
15
THE COURT:
16
MR. KLAYMAN:
Right.
-- are at issue here, but we only
17
18
19
Okay.
Okay.
20
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22
23
24
25
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He is entitled to see
3
4
fraud.
10
He
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12
13
14
15
16
as an attorney.
17
MS. HANDMAN:
18
19
that Mr. Risen has ever received from Mr. Flynn have been
20
produced.
21
22
23
initial disclosures just ask what you are planning to rely on.
24
25
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 8988
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Dismiss.
Much of it
There
He testified
20,000 pages.
10
11
most of them were court records and that was his testimony.
12
13
all documents that Mr. Risen had received from Mr. Flynn.
14
15
August 10th.
16
sometimes people say they don't have things and you have to
17
18
19
So
THE COURT:
20
21
22
MS. HANDMAN:
23
24
And I believe he
25
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in his book.
Lichtblau.
e-mail this was written on the fly on the way back from
California where Mr. Risen believed that was where Mr. Flynn
was.
And there was, you know, maybe Mr. Flynn told him
10
Who knows?
11
documents.
12
know numbers.
13
We produced them.
14
MR. KLAYMAN:
15
THE COURT:
16
MR. KLAYMAN:
17
Sure.
What we just heard was testimony by
18
19
20
been turned over to her and we only got a few out of the 4,400
21
22
23
them.
Mr. Risen's
24
25
They are two top national security reporters for the New York
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 9190
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Times.
on the fly.
a thumb drive.
THE COURT:
9
10
11
This is unequivocal.
12
his documents and I know that Mr. Risen has given us all the
13
14
15
Mr.
16
Risen asked him to look over the book to see if he had any, you
17
18
19
MR. KLAYMAN:
20
THE COURT:
21
MS. HANDMAN:
22
THE COURT:
23
24
25
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MS. HANDMAN:
Risen.
THE COURT:
MS. HANDMAN:
is.
THE COURT:
MS. HANDMAN:
THE COURT:
10
11
MS. HANDMAN:
12
13
THE COURT:
He doesn't
14
15
where it is.
16
MS. HANDMAN:
17
THE COURT:
18
19
drive is.
20
He doesn't.
You and your legal team doesn't know where the thumb
21
MS. HANDMAN:
Correct.
22
We've never had it and Mr. Risen has never had it,
23
24
25
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were relevant.
THE COURT:
Okay.
claiming the Defendant, Mr. Risen and his counsel, have said
10
that all the documents have been turned over, believe me you --
11
12
13
from that scenario, but right now I do not have any alternative
14
15
16
17
18
19
20
work product or not, the Defense says you have them all.
MR. KLAYMAN:
21
22
that the recitation of Mr. Risen's testimony that she just gave
23
was false.
24
thumb drive.
25
THE COURT:
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MR. KLAYMAN:
transcript of that and show you what was said and just now was
software.
justify what was said because I was cut off at deposition with
Same thing.
10
11
12
THE COURT:
13
14
15
16
drive.
17
MR. KLAYMAN:
18
19
20
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22
23
24
25
violent guy.
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MR. KLAYMAN:
THE COURT:
I'm not.
are trying to find out from Mr. Risen if he ever had the thumb
obstreperous or not.
but the point is, even if she was, I cannot believe that an
10
11
MR. KLAYMAN:
12
THE COURT:
All right.
13
14
deposition transcript.
15
16
anyone.
17
18
19
20
21
e-mail.
22
23
24
25
MR. KLAYMAN:
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of comment.
So I am going to refrain.
MR. KLAYMAN:
THE COURT:
for me, Mr. Klayman, that you have noticed for today?
MR. KLAYMAN:
THE COURT:
10
All right.
Because I have
11
MS. HANDMAN:
12
THE COURT:
13
minute.
8
9
14
MS. HANDMAN:
Correct.
15
MR. KLAYMAN:
No.
16
MS. HANDMAN:
17
THE COURT:
All right.
18
participation today.
19
20
21
comfortable.
22
23
So
24
25
So
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CM/CEF.
10
side won some, you lost some, and basically, it's a draw.
11
12
to either side.
13
try to relax a little bit and keep the level of vitriol down,
14
15
16
17
18
whatsoever.
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20
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22
23
24
25
All right.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 9897
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THE COURT:
MR. KLAYMAN:
THE COURT:
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Thank you.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 9998
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CERTIFICATE
3
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above-entitled matter.
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08/24/15
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EXHIBIT B
TRAN
DISTRICT COURT
CLARK COUNTY, NEVADA
* * * * *
.
THE STATE OF NEVADA,
.
CASE NO. C-268764
.
Plaintiff,
.
DEPT. NO. X
.
vs.
.
TRANSCRIPT OF
.
PROCEEDINGS
DENNIS L. MONTGOMERY,
.
.
Defendant.
.
. . . . . . . . . . . . . . .
BEFORE THE HONORABLE JUDGE WALSH, DISTRICT COURT JUDGE
STATUS CHECK
WEDNESDAY, AUGUST 19, 2015
APPEARANCES:
FOR THE STATE:
COURT RECORDER:
TRANSCRIPTION BY:
VICTORIA BOYD
District Court
2
1
2
3
THE CLERK:
Dennis Montgomery.
4
5
MR. PAULSON:
Ron Paulson
Check.
Mr. Montgomery.
He calls me
He apologized to me.
10
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14
whole lot.
15
strokes, and he's going through therapy now and he's been
16
17
He's up
18
19
recovering.
20
significantly better.
21
22
He's
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25
3
1
the first of the year and hopefully we'll get some updated
THE COURT:
MR. BURNS:
THE COURT:
issues.
MR. PAULSON:
THE COURT:
MR. PAULSON:
10
believe.
He does.
11
MR. BURNS:
12
MR. PAULSON:
13
THE COURT:
14
Yeah.
Paulson?
15
MR. PAULSON:
16
could set this out for another Status Check after the first of
17
the year when he's supposed to go back and see Dr. Lem
18
(phonetic) and his other doctors and get an updated report for
19
me.
20
21
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25
26
But, unfortunately,
4
1
MR. BURNS:
THE COURT:
THE CLERK:
MR. PAULSON:
THE COURT:
9
10
7
8
Thank you.
MR. PAULSON:
you.
(Proceeding was concluded)
*
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Verbatim Digital Reporting, LLC 303-798-0890
Thank
CERTIFICATION
AUDIO -VIS UAL RECORD ING OF THE PROCEE DINGS I N THE ABOVE
AFFIRMATION
I AFFIRM THAT THI S TRAN SCRI PT DOES NOT CONTAI N THE SOCIA L
SECUR IT Y OR TAX I DENTI FI CATI ON NUMBER OF ANY PERSON OR ENTIT Y.
Englewood, CO 80110
(303) 798-0890
JULI E
O-aD-Q_
L ~.tJ-/
DATE