Case 1:15-cv-20782-JEM Document 112 Entered on FLSD Docket 08/31/2015 Page 1 of 4

IN UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 15-cv-20782-Martinez-Goodman
DENNIS MONTGOMERY,
Plaintiff,
v.
RISEN, ET AL.
Defendants.
_____________________________/

MOTION TO STAY IMPLEMENTATION OF PARAGRAPH 5 OF MAGISTRATES

ORDER OF AUGUST 22, 2015
Plaintiff Dennis Montgomery hereby moves this Court to the stay the implementation of
paragraph 5 of Magistrate Judge Jonathan Goodmans Post-Discovery Hearing Order of August
22, 2015 on the following grounds:
Plaintiff presently intends to file an objection with regard to production of any software
on various grounds including relevancy (The Federal Bureau of Investigation has not determined
whether or not such software was provided and whether it was classified or not).
The issue of whether any software must be produced is not even relevant, as during Mr.
Risens deposition, he effectively admitted that in writing his allegedly defamatory statements
about Plaintiff, he did not have access to any classified information. Since Mr. Risen admitted
that he did not have access to classified information, Mr. Risen would not have had, and did not
have access to any such software when he made the false and defamatory statements about
Plaintiff. Thus, it is not relevant to this lawsuit and must respectfully not be produced by
Plaintiff.

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In addition, quite apart from lack of relevancy of any such software, Defendants provided
nothing more than the name of their purported expert witness by the deadline to designate
experts of August 3, 2015, which did not hinge on obtaining access to any software.
Federal Rule of Civil Procedure 26.1 provides, in pertinent part, the following:
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or
ordered by the court, this disclosure must be accompanied by a written reportprepared
and signed by the witnessif the witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as the party's employee
regularly involve giving expert testimony.
The report must contain:
(i)
a complete statement of all opinions the witness will express and the basis and
reasons for them;
(ii)
the facts or data considered by the witness in forming them;
(iii)
any exhibits that will be used to summarize or support them;
(iv)
the witness's qualifications, including a list of all publications authored in the
previous 10 years;
(v)
a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi)
a statement of the compensation to be paid for the study and testimony in the
case.
Fed. R. Civ. P. 26.1 (Emphasis added).
Defendants stated in an accompanying email that they were providing just the name of
the expert witness. See Exhibit 1 Email of Defendants counsel. However, Defendants still
failed to provide information as required by FRCP 26.1. Defendants did not include (1) the
purported experts qualifications, (2) a list of all other cases within which the expert
provided expert testimony, and (3) a statement of the compensation to be paid for the study
and testimony in the case. See Exhibit 2. All three of these criteria were not met by the
deadline of August 3, 2015.
Accordingly, even if such software existed in Plaintiffs possession, control, and/or
custody, Defendants have forfeited the right and means to use it at trial or for any other purpose.

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It is therefore apparent that their professed desire for Plaintiff to produce any software is merely
strategically designed for ulterior irrelevant purposes.
Plaintiff respects Magistrate Judge Goodman but respectfully disagrees with his ruling
regarding the software and will thus be filing an objection with the Court within the allotted
time.
Plaintiff sought consent for this motion. Defendants do not consent to this motion.
WHEREFORE, for the forgoing reasons, Plaintiff respectfully requests that this Court
enter an order staying the implementation of paragraph 5 of Magistrate Judge Goodmans PostDiscovery Hearing Order of August 22, 2015 until such time as Plaintiffs timely objection is
heard.

Dated: August 31, 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

Case 1:15-cv-20782-JEM Document 112 Entered on FLSD Docket 08/31/2015 Page 4 of 4

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 31st day of August 2015, a true and correct copy of the
foregoing was served via email and U.S. Mail upon the following:
Sanford Lewis Bohrer
Brian Toth
Holland & Knight, LLP
Suite 3000
701 Brickell Ave
Miami, FL 33131
Email: sbohrer@hklaw.com
Email: brian.toth@hklaw.com
Laura R. Handman
Micah Ratner
Davis Wright Tremaine LLP
1919 Pennsylvania Ave., N.W., Suite 800
Washington D.C. 20006-3401
Email: laurahandman@dwt.com
Email: MicahRatner@dwt.com
Attorneys for Defendants

/s/ Larry Klayman

Larry Klayman, Esq.