Case 1:15-cv-20782-JEM Document 158 Entered on FLSD Docket 10/21/2015 Page 1 of 3

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.
_____________________________/
SUPPLEMENT TO NOTICE OF FILING AND CONSENT MOTION FOR EXTENSION
OF TIME TO FILE MOTION TO FILE UNDER SEAL
Plaintiff Dennis Montgomery hereby files the above-styled supplement with the Court in
order to give this Court notice that Plaintiff, pursuant to Magistrate Judge Jonathan Goodmans
Post Discovery Hearing Administrative Order of October 19, 2015 (Docket No. 154) has
provided the Federal Bureau of Investigation with additional information to aid in the search of
any of the documents and/or software at issue.
Attached hereto is an affidavit from Plaintiff Montgomery which has been provided to
the FBI today, as the Magistrate Judge has ordered. Exhibit 1. This pleading, with attachments
to Mr. Montgomerys affidavit, is being emailed to counsel for Defendants and to Magistrate
Judge Jonathan Goodman and will be filed under seal with a supplemental motion on October
22, 2015 for the reasons set forth in the original Notice of Filing And Motion For Extension Of
Time To File Motion To File Under Seal filed without attachments on October 20, 2015, and
with attachments on October 21, 2015 under seal.

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In light of the letter/objection of Justice Department Counsel for the Central Intelligence
Agency (CIA) just obtained yesterday by Plaintiff, after Plaintiff requested it from
Defendants counsel after Plaintiff learned of it yesterday, out of an abundance of caution
Plaintiff is moving to have the communications at issue placed under seal. This letter, which is
an objection from the U.S. Department of Justice and its client the CIA over Defendants
subpoenas to the CIA and certain personnel, is self-explanatory, as it underscores the sensitive
nature of these documents at a minimum, and sets forth the U.S. Department of Justices and the
CIAs position that the software at issue, even if it exists, is not relevant under the facts, law, and
circumstances of this case, among other compelling objections. Exhibit 2.

Dated: October 21, 2015

Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
Klayman Law Firm
FL Bar No. 246220

7050 W Palmetto Park Rd.

Suite 15-287
Boca Raton, FL 33433
(310) 595-0800
leklayman@gmail.com
Attorney for Plaintiff

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 21st day of October, 2015, a true and correct copy of
the foregoing (Case No. 15-cv-20782) was filed via CM/ECF and served 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

/s/ Larry Klayman

Larry Klayman, Esq.

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Exhibit 1

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Case 1:15-cv-20782-JEM Document 158-2 Entered on FLSD Docket 10/21/2015 Page 1 of 5

Exhibit 2

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U.S. Department of Justice
Civil Division
Federal Programs Branch
Mailing Address
Delivery Address
Post Office Box 883
20 Massachusetts Ave., N.W.
Washington, D.C. 20044 Washington, D.C. 20530
Raphael O. Gomez
Senior Trial Counsel

Telephone: (202) 514-1318

Facsimile: (202) 616-8460
Email:
raphael.gomez@usdoj.gov

October 16, 2015

BY ELECTRONIC MAIL
Laura R. Handman, Esq.
Davis Wright Tremaine LLP
1919 Pennsylvania Ave., N.W., Suite 800
Washington D.C. 20006-3401
Re:

Montgomery v. Risen, C.A. No. 15-cv-20782 (S.D. Fla.)

Dear Ms. Handman:

On October 2, 2015, counsel for defendants in the above-referenced action notified the
Central Intelligence Agency ("CIA'') that pursuant to 32 C.F.R. Part 1905 (CIAs Touhy
regulations), (d)efendants seek discovery from the [CIA], its components, and its current and
former employees. Ratner Declaration at 1. You also stated that pursuant to 32 C.F.R.
1905.4(d), you offered the declaration of defendants attorney Micah J. Ratner as a statement
regarding the scope and relevance of the requested discovery. Id. Further, as part of your
Touhy request, you served subpoenas for documents and testimony from CIA employees upon
the CIA. As you are aware, the CIA is not a party to this action, in which plaintiff brings a libel
action against author James Risen, his publisher HMH, and its holding company HMHC arising
from statements in Chapter 2 ("Chapter") of his book, Pay Any Price: Greed, Power, and the
Endless War. Id. at 1-2.
CIAs Touhy regulations prohibit its employees from either producing documents or
testifying without prior authorization from the proper agency official. See 32 C.F.R. 1905.3.
As set forth in its Touhy regulations, in determining whether information can be produced in
response to your requests, CIA officials will consider a number of factors in reaching a decision,
including, but not limited to: whether production is appropriate in light of any relevant privilege;
whether production is appropriate under the applicable rules of discovery; whether disclosure
would violate a statute; whether disclosure would be inconsistent with the statutory responsibility
of the Director of the CIA to protect intelligence sources and methods; and whether disclosure
would reveal classified information. 32 C.F.R. 1905.4(c).
Your requests are currently under consideration by the CIA. As of the date of this letter,
however, a determination has not yet been made as to whether any of the information you are
seeking can be produced, and therefore no production of documents or deposition testimony on
the designated dates may take place. See id.

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In the meantime, while your subpoenas for documents and testimony are being made
pursuant to the CIAs Touhy regulations, assuming, arguendo, that Rule 45 applies to your
request, the CIA preserves the following additional objections to the requests:
1. As stated above, your Touhy subpoena requests for documents and testimony are under
consideration by the CIA and as a determination has not yet been made as to whether any
of the information you are seeking can be produced, no production of documents or
deposition testimony on the designated dates may take place. See 32 C.F.R. 1905.3(a).
2. The CIA objects to the requests to the extent any response would risk or require the
disclosure of any classified national security information or other privileged U.S.
Government information. To the extent a response to the requests would do so, no
response is required or will be provided. In addition, none of the objections set forth
herein should be construed to confirm or deny that the CIA maintains or has maintained
the information being sought in the request, and discussed in this response, or any
statement or allegation in the request or in Chapter 2 of Pay Any Price: Greed, Power,
and the Endless War.
3. As set forth more specifically below, your requests violate Rules 26 and 45 of the Federal
Rules of Civil Procedure, see Fed. R. Civ. P. 26(c), 45(d)(1), (d)(3), on the grounds, inter
alia, that they are overly broad, unduly burdensome, unreasonably cumulative and
duplicative, and fail to describe the information sought with reasonable particularity, and
to the extent they call for the production of privileged information. Compliance with
these requests will impose substantial burdens that will detract from the mission of the
CIA.
4. The CIA specifically objects to your deposition requests on the ground that they are
overly broad, unduly burdensome, unreasonably cumulative and duplicative, and fail to
describe the information sought with reasonable particularity. The request seeks to
depose 4 current or former CIA employees concerning at least 12 topic areas.
Depositions of current or former CIA officials in third party litigation impose substantial
burdens on the CIAs mission in light of the need to ensure that any U.S. Government
information is authorized for disclosure and that any classified national security
information is not disclosed. Again without confirming or denying any allegation or
statement, you seek to depose several current or former high-ranking agency officials on
an extraordinarily broad range of topics and matters in which the CIA was allegedly
involved, going back over a decade. Your deposition requests are also unreasonably
cumulative [and] duplicative, see Fed. R. Civ. P. 26(b)(2)(C)(i), in that many of the
topics on which you seek deposition testimony are covered in your requests for agency
documents.
5. The CIA also specifically objects to your document requests on the ground that they are
overly broad, unduly burdensome, unreasonably cumulative and duplicative, and fail to
describe the information sought with reasonable particularity, and to the extent they call
for the production of classified national security or other privileged information. In
particular, many of the requests seek information that would be expected to be
2

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substantially duplicative of information contained in and cited by defendants in officially

released public reports. See, Defs. Mot. Dismiss at 36, ECF No. 25.
6. The document requests also seek information that is otherwise available from sources that
are more convenient, less burdensome, and/or less expensive. Defendants are currently
seeking the same information and material in the instant action from plaintiff. For
example, defendants seek a copy of Mr. Montgomerys software from the CIA when it
currently has obtained a court order in the instant action for production of such software
from plaintiff. See Post Discovery Hearing Order dated August 22, 2015, ECF No. 107.
7. The subpoena "fails to allow reasonable time for compliance." Fed. R. Civ. P.
45(d)(3)(A)(i). The subpoena was served on October 2, 2015, and requests production of
documents by October 21, 2015. Given the breadth of the subpoena, 12 working days
does not even come close to providing sufficient time for CIA to ascertain whether and to
what extent the CIA can provide any response to the request.
8. You have not satisfied your burden of establishing that the requested information is
relevant to [your clients] defenses. For example, you assert that the testimony sought is
needed to support your clients defenses in this action, including information essential to
answering questions that are central to the element of falsity in Montgomery's libel
claim. Ratner Declaration at 3. The validity of these defenses turns, however, on what
the defendants knew or should have known at the time of the challenged statements, not
on what the government knew. See, Don King Prods. v. Walt Disney Co., 40 So. 3d 40,
43 (Fla. Dist. Ct. App. 4th Dist. 2010) (in the context of defamation, actual malice is
defined as knowledge that the statement was false or reckless disregard of whether it was
false or not. [citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, (1964)]); in
assessing reckless disregard, the court found that a showing of reckless disregard
requires sufficient evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication. Id. (quoting the Supreme
Court in St. Amant v. Thompson, 390 U.S. 727, 731 (1968). As a result, your requests are
also not reasonably calculated to lead to the discovery of admissible evidence, and the
burden and expense of providing the requested testimony would outweigh its likely
benefit in the underlying action. See Fed. R. Civ. P. 26(b)(1), (b)(2)(C)(iii).
The foregoing objections are not exclusive, and the CIA reserves the right to assert further
objections in response to the subpoenas requesting documents and testimony as appropriate,
including, but not limited to, privileges and protections such as the attorney-client privilege, the
work product doctrine, the deliberative process privilege, and the need to withhold classified
information.
* * *

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For all these reasons, CIA objects to the subpoenas and has not authorized the production
of the requested documents or deposition testimony at the date, time, and place specified on the
subpoenas. You will be advised once the CIA has made a final decision on your requests
pursuant to its Touhy regulations.
Sincerely,

/s/
Raphael O. Gomez