Montgomery V Risen # 164 - P Objection To MJ Order Re Deadline For Source Code

Case 1:15-cv-20782-JEM Document 164 Entered on FLSD Docket 10/26/2015 Page 1 of 14
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.
_____________________________/
PLAINTIFFS OBJECTION TO MAGISTRATE JUDGES ORDER OF

OCTOBER 19, 2015 AND REQUEST TO STAY
Pursuant to Federal Rules of Civil Procedure (FRCP) 59 and 72, which govern a
district courts consideration of a partys objection to a magistrate judges order, Plaintiff Dennis
Montgomery (Plaintiff) hereby respectfully objects to Magistrate Judge Jonathan Goodmans
Order of October 19, 2015 (Order) (Exhibit 1), to the U.S. District Court for the Southern
District of Florida (District Court) and requests the presiding judge stay the implementation of
this portion of the order until such time that this motion is heard and decided by the District
Court.1
Plaintiff specifically objects to the portion of the Order dealing with the deadline of
October 26, 2015, to produce any as yet undetermined non-classified software and related
documents to Defendants. Plaintiff has fully complied with all other aspects of the Order and has
made a good faith effort to comply with Magistrate Judge Goodmans orders despite having very
1
Plaintiff has previously filed an objection pursuant to FRCP 59 and 72 that is still pending
before this Court with regard to the relevancy and other issues concerning the alleged software at
issue. See Docket No. 125.
1
recently been back in the hospital. Plaintiff recently suffered another severe, life-threatening,
medical setback related to his potentially fatal brain aneurism and may need another operation.
See Exhibit 2.
Plaintiff is an expert on encryption who previously was employed by companies that
provided decryption technology and software for U.S. intelligence agencies such as the National
Security Agency (NSA) and the Central Intelligence Agency (CIA) to decipher coded
messages by Osama Bin Laden and other terrorist groups through broadcasts made on Al-Jazeera
television. Defendants defamed Plaintiff by publishing in Florida, nationally, and internationally
that Plaintiff is a con-artist, a fraud, a hoax, and dishonest, among a myriad of other false and
misleading published statements.
In his capacity as an expert working with the NSA, CIA, and Defense Intelligence
Agency (DIA), Plaintiff was granted a Special Access Programs (SAP) security clearance
and thus was able to view, access, and retain classified information. During the course of his
work for the NSA, CIA, and other intelligence agencies, Plaintiff saw evidence of illegal and
unconstitutional surveillance on the American people and felt a moral obligation, despite his
severe disabilities including a potentially fatal brain aneurism, to become a whistleblower and a
government witness in order to shed light on, expose, and remedy the unconstitutional actions of
the intelligence agencies. Plaintiff came forward and began his work as a whistleblower and a
government witness before this lawsuit had originated and has been in the process of coming
forward with his information for years, well before this lawsuit was conceived of or filed. In
conjunction with the Director of the Federal Bureau of Investigation (FBI), the Honorable
James Comey, and the FBIs General Counsel, James Baker, as well as the Honorable Royce C.
Lamberth, U.S. District Court Judge for the District of Columbia and Assistant U.S. Attorney
Deborah Curtis, who is a renowned federal government national security legal expert and
prosecutor, a process was created for Plaintiff to legally provide all his information to the FBI.
Plaintiff negotiated a production immunity agreement wherein he could legally turn over all the
information in his possession to the FBI. See Docket No. 158 Motion to File Under Seal.
As a result, and pursuant to law, Plaintiff turned over all information of the widespread
illegal surveillance by governmental agencies such as the NSA, CIA, and DIA. This information
consisted of 47 hard drives containing 51.6 million files, amounting to 600 million pages of
documents. The FBI, through Mr. Baker, has indicated that: [i]n the event the software is
located, appropriate U.S. Government agencies and/or departments will conduct a classification
review of the software. These security measures are necessary based on the representations made
by Mr. Montgomery that classified information resides throughout the drives. Exhibit 10 at pp.
4.
Plaintiffs counsel and his paralegal, Ms. Dina James, met with Ms. Curtis on July 28,
2015, and then subsequently Plaintiff and his counsel and his paralegal met with Ms. Curtis and
agents from the FBI on August 19, 2015 at the FBIs Miramar, FL building. Prior to the meeting
with the FBI, Ms. Curtis emailed Plaintiffs counsel to give a preview of what questions would
be asked at the meeting at the Miramar. At the meeting, Plaintiff answered all questions posed to
him.
During both meetings with Ms. Curtis, Plaintiffs counsel informed Ms. Curtis that there
was ongoing litigation with regard to Defendants book, Pay Any Price: Greed, Power and
Endless War. See Affidavit of Larry Klayman (Docket No. 126). Specifically, Plaintiffs
counsel stated the following in his affidavit:
During our first meeting, I explained to Ms. Curtis that my client, Mr. Dennis
Montgomery, was involved in civil litigation with James Risen and his publishing
companies over allegations that Mr. Montgomery had been defamed. The primary
libel occurred in his recently published book called Pay Any Price: Greed, Power,
and Endless War.
I again advised Ms. Curtis and the agents that were present, Walter B. Giardina,
Supervisory Special Agent, and William J. Barnett, Special Agent, that the
litigation was going forward and that Mr. Montgomery was being deposed the
following day by counsel for Mr. Risen and his publishers.
I told Ms. Curtis that I would be careful not to have Mr. Montgomery disclose any
classified information during his deposition. I also advised her that Defendants
had raised the issue of his alleged software and wanting to get access to it, but that
we were taking the position that it was irrelevant. See Objection to Portions of
Magistrate Judge's Order of August 22, 2015 [Dkt # 125].
In this context, I asked Ms. Curtis if Mr. Montgomery could have access to
anything that was not considered to be classified contained in the hard drives,
including any unclassified software should it have to be produced, and that was
not considered contraband. I further asked her and the FBI agents to determine if
it is classified. She agreed on behalf of the U.S. Department of Justice, should it
have to be produced in the civil litigation concerning Mr. Risen and his
publishers.
Affidavit of Larry Klayman (Docket No. 126) at pp. 2-3 (Exhibit 3). Ms. Dina James, paralegal
for Plaintiffs counsel, was also present at these meetings and submitted an affidavit that
corroborated the statements made by Plaintiffs counsel at this meeting. See Exhibit 4.
Mr. James Baker of the FBI subsequently emailed Plaintiffs counsel on September 8,
2015, seeking assistance in the search for the software at issue. Plaintiffs counsel timely
provided information to Mr. Baker as requested. An additional email was sent by Mr. Ted
Schwartz, Assistant General Counsel for the FBI, on October 1, 2015. Although seriously ill,
Plaintiff, through counsel, once again provided the additional information requested in order to
aid in the search for the software at issue. Copies of these correspondences have been filed along
with a motion to file under seal (Docket No. 158). Plaintiff has thus made a good faith effort and
has fully cooperated with the FBIs search for the software at issue.
Even more, in compliance with Magistrate Judge Goodmans Order of October 19, 2015,
Plaintiff also provided further instructions to the FBI by email, a copy of which was filed along
with a motion to file under seal on October 22, 2015 (Docket No. 160). Plaintiffs counsel then
followed up with the FBI with a phone call to facilitate pinpointing any software, if it existed.
During discovery, Defendants propounded a request for production of documents which
sought a copy of Plaintiffs alleged software. Plaintiff first objected to this request for
production, and the parties eventually were forced to take the matter before Magistrate Judge
Jonathan Goodman. A hearing was held on this and other issues on October 16, 2015, and
Magistrate Judge Goodman issued a Post Discovery Hearing Administrative Order on October
19, 2015 (Docket No. 154).
On October 19, 2015, Magistrate Judge Jonathan Goodman issued the following
order:
Plaintiff shall, by October 26, 2015, produce the software at issue in this case to
Defendants. If the software is not turned over by this date and Defendants seek
significant sanctions (i.e. dismissal or an adverse inference), then Defendants may
file a motion and/or memorandum of law if they are still seeking sanctions. If
Defendants file a motion, then the Undersigned will issue a briefing schedule
order.
See Docket No. 154 Post Discovery Hearing Administrative Order.
Plaintiff respectfully objects to Magistrate Jonathan Goodmans Order on the basis that
he will be unable to provide the software at issue, if any, by October 26, 2015, and on other
grounds as set forth below.
Plaintiff has submitted an affidavit, sworn to under penalty of perjury, stating that:
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
pursuant to my immunity agreement of July 28, 2015 and the inventory of what I
turned over.
See Exhibit 5 Affidavit of Dennis Montgomery. As shown, Plaintiff is not even sure if the
documents and other things provided to the FBI contain the software at issue. Nonetheless,
Plaintiff has made a good faith effort and has given his full cooperation to the FBI and the U.S.
Attorneys office in order to assist in the search for any software at issue to aid in the
determination of whether the software is present in the documents and other things that were
provided to FBI, and if they are classified. Exhibit 10.
Plaintiff has facilitated, despite his failing health, the providing of the software, if any, by
the FBI. As the FBI made clear in its letter of September 8, 2015, Plaintiff provided the FBI
with hard drives contain[ing] 51.6 million files amounting to 600 million pages. See Letter of
James Baker (Docket No. 126). The FBI is working with due speed to search through the
millions of files in order to determine whether such software does exist in the documents
provided by Plaintiff. After such a determination is made, the FBI must then determine whether
the software, if any, is classified in nature.
Further, as stated above, Plaintiff is not in possession of the software at issue, if any such
software exists in the files provided to the FBI, and is not able to provide it to Defendants. As
set forth in Federal Rules of Civil Procedure 34, a party is only required to produce and permit
the requesting party or its representative to inspect, copy, test, or sample the following items in
the responding party's possession, custody, or control (Emphasis added). See also Searock v.
Stripling, 736 F.2d 650 (11th Cir. 1984) (Rule 34(a) requires the responding party to produce
not only responsive documents in his possession, but also those in his control. Fed. R. Civ. P.
34(a) (a party may discover documents "which are in the possession, custody or control of the
party upon whom the request is served"). The Eleventh Circuit has defined "control" as the legal
right to obtain documents upon demand.)).
In Thermoset Corp. v. Bldg. Materials Corp., No. 14-60268 (S.D. Fla., Nov. 18, 2014),
the U.S. District Court for the Southern District of Florida, this Court, denied a motion to compel
on the grounds that the party represented that the documents did not exist. Id. citing Bank of
New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 152 (S.D.N.Y. 1997). ("Under
ordinary circumstances, a party's good faith averment that the items sought simply do not exist,
or are not in his possession, custody or control, should resolve the issue of failure of production. .
. .").
Defendants have raised the issue of the software simply to try to throw a monkey
wrench into this lawsuit in an attempt to use it as a way to get this lawsuit dismissed. However,
the issue of the software is nothing more than a red herring, and the software at issue is not even
relevant to this lawsuit. Defendants, in their Motion to Dismiss (Docket No. 52) admit and
concede that Defendants book, written by Defendant Risen, was based on previously published
articles by Bloomberg News and Playboy and non-classified public court and congressional
records. Specifically, in their Motion to Dismiss, Defendants stated:
Risen expressly acknowledges in the Book that he relied on the Playboy Article
and New York Times Article. (Book at 53.) The Book added Montgomerys
denials to the narrative, obtained after Risen interviewed him. (Id. at 33-34, 37,
51, 53).
Motion to Dismiss (Docket No. 52) at pp. 10. Further, Defendants admitted and conceded:
2. Reliance on FBI Reports, Court Documents, and Congressional Records
for Allegations of Fake Software
As with his New York Times Article and prior media accounts, Risen primarily
based the Chapter on court records and other official documents. The Chapter
refers to FBI interviews of Warren Trepp, Montgomerys partner in the software
venture, eTreppid, and its employees. The Book expressly states that, according
to court documents that include his statements to the FBI, Montgomerys
software was fake because Trepp later told the FBI that he eventually learned
that Montgomery had no real computer software programming skills. (Book at
37.)10 Similarly, the Chapter accurately quotes statements in FBI reports in which
an eTreppid employee Sloan Venables began to suspect Montgomerys software

was fake. Venables told the FBI that another employee, Patty Gray, began to
suspect that Montgomery was doing something other than what he was actually
telling people he was doing and added in his statement to the FBI that he knew
that Montgomery promised products to customers that he had not been
completed or even assigned to programmers. (Book at 48-49) (emphasis added).
Then, citing court documents, the Chapter states: Over the Christmas holidays
[of 2005], Montgomery allegedly went into eTreppids offices and deleted all of
the computer files containing his source code and software development data,
according to court documents. (Book at 49) (emphasis added). Later,
[a]ccording to court documents, [Trepp] told the FBI that Montgomery had
stolen the software eTreppid had used on secret Pentagon contracts but [a]s
federal investigators moved in to investigate the alleged theft of the technology,
they heard from Trepp and others that Montgomerys alleged technology wasnt
real. (Id.) (emphasis added). The Chapter correctly summarizes FBI reports
contained in court records showing that the technology wasnt real.
Motion to Dismiss (Docket No. 52) at pp. 10-11. Defendants further admitted and
conceded:
The Book also expressly relies on congressional records to confirm that
Montgomerys software was fake. The Book explains that, [a]t the time of the
Christmas 2003 scare, John Brennan was the head of the Terrorist Threat
Integration Center, which meant that Brennans office was responsible for
circulating Montgomerys fabricated intelligence to officials in the highest
reaches of the Bush administration. (Book at 47.) The Book states that, [i]n
2013, while the Senate was considering whether to confirm Brennan to run the
CIA, Sen. Saxby Chambliss, a Georgia Republican who was vice chairman of the
Senate Intelligence Committee, submitted a written question to Brennan about his
role in the intelligence communitys dealings with Montgomery. (Id.) Indeed,
Senator Chambliss written question titled Bogus Intelligence, states that
[m]edia reports indicate that when you led the Terrorist Threat Integration
Center (TTIC), you championed a program involving IT contractors in Nevada
who claimed to intercept al-Qaida targeting information encrypted in the
broadcasts of TV news network Al Jazeera. The written questions confirm in
congressional records that not only [t]he media but documents we have
reviewed show, that CIA officials derided the contractors information, but
nonetheless, you passed it to the White House and alert levels ended up being
raised unnecessarily. (Id.) (emphasis added). Accurately quoting Brennans
response, the Book states that, [i]n response: (1) Brennan denied that he had
been an advocate for Montgomery and his technology; (2) insisted that the
Terrorism Threat Integration Center was merely a recipient of the information and
data, which had been passed on by the CIA; (3) he included Montgomerys data
in analytic products; and (4) confirmed that Montgomerys purported software
was determined not to be a source of accurate information. (Book at 47)

(quoting Brennan Response at 9) (emphasis added).
Motion to Dismiss (Docket No. 52) at pp. 12-13. Defendants further admitted and
conceded:
3. Reliance on FBI Reports and Court Documents for Allegations of Rigged
Demonstrations of Software to U.S. Government Officials
The Book also explicitly relies on court records and FBI reports, in which Trepp
also described to federal investigators how eTreppid employees had confided to
him that Montgomery had asked them to help him falsify tests of his object
recognition software when Pentagon officials came to visit. (Book at 37.) Indeed,
Trepp said that on one occasion, Montgomery told two eTreppid employees to
go into an empty office and push a button on a computer when they heard a beep
on a cell phone. (Id.) Then [a]fter he was in place in the field, he used a hidden
cell phone to buzz the cell phone of one the eTreppid employees, who then
pushed a key on a computer keyboard, which in turn flashed an image of a
bazooka on another screen prominently displayed in front of the military officers
standing in another room, according to court documents. (Id.) (emphasis added).
Thus, [t]he military officers were convinced that Montgomerys computer
software had amazingly detected and recognized the bazooka in Montgomerys
hands. (Id.) The Book again includes Montgomerys denials. (Id. at 15, 37.)
Once again, the Book accurately describes the FBI report contained in court
documents.
Id. Indeed, Defendants based their pending motion to dismiss on the premise that no government
information, including any likely classified software, is necessary for the Court to consider
dismissing or trying this case before a jury. Defendants are talking out of both sides of their
mouths. They indicate that no classified material was used for the writing of Defendant Risens
book but are now stating that they need classified software.
Further, Defendant Risens deposition confirmed that he did not have access to any
classified information and not base his book on this. Specifically, as stated under oath in his
deposition taken on June 19, 2015:
Q And you say that based your reporting in part on stories written by others such
Aram Roston of Playboy magazine who wrote a story, The Man Who Conned the
Pentagon?
A Yeah. That was written long before our story.

See Exhibit 6 Transcript of Risen Deposition at pp. 124:11 124-16.
Q Now Mr. Risen, is it correct that you -- other than what was testified to in front
of Congress which you claim was testified to references to documents at the CIA,
you did not have access to any government documentation in writing your book,
Pay Any Price?
A No, we did because there were lots of court records related to FBI
investigations, Air Force investigations, lots of emails and other records
related to and depositions, so there were many government documents that
we relied on that were all public, had filed in court cases. And when, as I
said, when the Senate Chambliss referred specifically
Q Now, the only documents you got were those documents that were public?
A Court records, yes. Public court records.
Q Okay.
A And we didn't -- I didn't attribute anything to classified documents that I
had obtained from the CIA directly in connection with this.
Id. at pp. 111:1 111-7. Since Defendant Risen admitted that he did not have access to
classified information, Defendant 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, the software
is not relevant to this lawsuit and must not respectfully be produced by Plaintiff.
In addition, quite apart from lack of relevancy of any such software, after many months
of discovery, Defendants provided nothing more than the name of their purported expert witness
on the absolute last day of the deadline to designate experts which was on August 3, 2015. Their
12th hour action underscores how they allowed time to tick off for many months again
confirming that their demand for classified software is simply a litigation tactic.
Federal Rule of Civil Procedure 26.1 provides, in pertinent part, the following:
10
(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).
Incredibly and disingenuously, Defendants stated in an accompanying email that they
were providing just the name of the expert witness. See Exhibit 7 Email of Defendants
counsel. However, Defendants still materially failed to provide information as unequivocally
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 8. All three of
these criteria were not met by the deadline of August 3, 2015.
Accordingly, even if such classified 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 since they forfeited their use of any expert to evaluate any software and waited until the
absolute last minute to provide just the name of their so-called expert. It is therefore apparent
that their professed desire for Plaintiff to produce any software is merely strategically designed
for ulterior irrelevant tactical purposes.
11
Also of importance is the letter/objection of Justice Department Counsel for the CIA just
obtained by Plaintiff on Tuesday, October 20, 2015, after he requested it from Defendants
counsel after learning of it the same day. This letter, which is an objection from 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 Department of Justices
and the CIAs position that the software at issue in this lawsuit is not relevant under the
circumstances of this case, among other compelling objections. Exhibit 9.
Even more, the CIAs letter states that [t]he 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. Thus, even if the software was provided to the
FBI, there is a likelihood that it may never be provided to Defendants because it is classified in
nature and cannot be released.
Given the circumstances, it would work a manifest injustice to dismiss this lawsuit or
raise an adverse inference, at this or any other time. The discovery cut-off date is November 19,
2015, and the trial in this lawsuit is not set to begin until Monday, March 17, 2016. There is still
time remaining for the FBI to review the documents and make a determination of the classified
nature of the documents and software, if any, in its possession, but to leave the trial date in place.
Discovery could be extended for a month or two, for instance. This Court also has the power to
extend discovery, even if it is just on the issue of the software.
Ultimately, it is not possible, under the circumstances, for the FBI to locate and turn over
the software to the Defendants by the date of October 26, 2015, even assuming it exists and is
not classified. Plaintiff is not in possession of the software, and cannot know for certain whether
the software at issue was turned over to the FBI in any event. If the software at issue was turned
12
over to the FBI, additional time is required for the FBI to search for this software and to make a
determination of whether the software is classified or not.
For these reasons, Plaintiff respectfully objects to Magistrate Judge Goodmans Order of
October 19, 2015, and respectfully asks the presiding judge to stay the implementation of this
portion of the Order until such time that this motion is heard by the District Court.
Dated: October 26, 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
13
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th day of October, 2015, a true and correct copy of
the foregoing was served via CM/ECF 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.
14
Case 1:15-cv-20782-JEM Document 164-1 Entered on FLSD Docket 10/26/2015 Page 1 of 4
Exhibit 1
Case
Case1:15-cv-20782-JEM
1:15-cv-20782-JEM Document
Document164-1
154 Entered
Enteredon
onFLSD
FLSDDocket
Docket10/19/2015
10/26/2015 Page
Page12ofof34
UNITEDSTATESDISTRICTCOURT
SOUTHERNDISTRICTOFFLORIDA
MIAMIDIVISION
CASENO.1520782CIVMARTINEZ/GOODMAN
DENNISL.MONTGOMERY,
Plaintiff,
v.
JAMESRISEN,etal.,
Defendants.
______________________________/
POSTDISCOVERYHEARINGADMINISTRATIVEORDER
On October 16, 2015, the parties appeared before the Undersigned concerning
Plaintiffs alleged failure to comply with the Courts Order [ECF No. 107] issued on
August22,2015concerningcertainsoftwarethattheUndersignedrequiredPlaintiffto
retrieve from the FBI and produce to Defendants, in addition to turning over
communications related to that software. Defendants seek severe sanctions against
Plaintiff,includingthedismissalofthecomplaintwithprejudice,forPlaintiffsalleged
failure to comply with this Order. For the reasons stated on the record,1 the
UndersignedORDEREDthefollowing:
If any party appeals this Order to the District Court, then the transcript of the
hearingwillneedtobeordered,asitoutlinestheUndersignedsreasoning.
Case
Document164-1
154 Entered
Enteredon
onFLSD
FLSDDocket
Docket10/19/2015
10/26/2015 Page
Page23ofof34
(1)
Defense counsel shall, by October 19, 2015, file a Notice of Filing on
CM/ECF, attaching herOctober 5,2015 email toAssistant General Counselatthe FBI,

TedSchwartz,andhisOctober6,2015response.2
(2)
Plaintiff shall, by October 20, 2015, file a Notice of Filing on CM/ECF,
attachingallcommunicationsbetweenPlaintiff(and/orPlaintiffscounsel)andtheFBI
and/orAssistantUnitedStatesAttorneyDeborahCurtisconcerningtheturningoverof
thesoftwareandtheeffortstoretrieveitfromtheFBI,includingallcommunicationsin
responsetoFBIGeneralCounselJamesBakersrequestforadditionalinformationthat
the Court was copied on from September 8, 2015 [ECF No. 126]. All of these
communications shall be turned over to defense counsel as well, even if Plaintiff
attemptstofilethedocumentsunderseal.3Ifthedocumentsarefiledunderseal,then
defensecounselareremindedthattheyareboundbytherulesofthisCourtconcerning
undersealfilings.
(3)
Plaintiff shall, by October 21, 2015, send the FBI, via email to Assistant
General Counsel Schwartz, a comprehensive set of instructions (the best available to
DefendantsfiledthesecommunicationsonOctober19,2015.[ECFNo.153].
TheUndersignedisbynomeansindicatingthatanysuchmotiontosealwillbe
granted if it is filed. This Court is a Court of public record, and so the process
including all filings is presumptively open to the public, except in exceptional
circumstanceswheregoodcauseisshown.Thecommunicationsatissue,ontheirface,
appeartobefairlystandardandinnocuous;however,shouldamotiontofileunderseal
be entered, then the Court will consider it and expect to see good cause for such an
extraordinaryremedy.
2
Case
Document164-1
154 Entered
Enteredon
onFLSD
FLSDDocket
Docket10/19/2015
10/26/2015 Page
Page34ofof34
Plaintiff) as to how to pinpoint the software amidst the massive amount of data that
was turned over to the FBI. If Plaintiff cannot tell the FBI exactly how to identify the
software,thenheshallsostateintheemail.Copiesofthatemailshallbefiledwiththe
Court(publicly)onCM/ECFbyOctober22,2015.
(4)
Plaintiff shall, by October 26, 2015, produce the software at issue in this
casetoDefendants.IfthesoftwareisnotturnedoverbythisdateandDefendantsseek
significantsanctions(i.e.dismissaloranadverseinference),thenDefendantsmayfilea
motionand/ormemorandumoflawiftheyarestillseekingsanctions.IfDefendantsfile
amotion,thentheUndersignedwillissueabriefingscheduleorder.
DONEANDORDEREDinChambers,atMiami,Florida,October19,2015.
Copiesfurnishedto:
TheHonorableJoseE.Martinez
Allcounselofrecord
Exhibit 2
Case 1:15-cv-20782-JEM Document 164-2 Entered on FLSD Docket 10/26/2015 Page

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Page 14of8
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SWED~SH
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After Visit Instructions for Dennis Lee Montgomery's visit on 10/20/2015

You were seen by
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425-313-7800
Center
425-313-7089
425-313-7800
425-313-7077
206-320-2600
SP MSK
206-386-4 744
Discharge Instructions
Concussion
A concussion, or closed-head injury, is a brain injury caused by a direct blow to the head or by a
quick and sudden movement (jolt) of the head or neck. For you, this seems to be due to a fall at
home, likely from your residual left-sided weakness after your stroke. Concussions are usually not
Nfontgomery, Dennis Lee (MR# 1001676690)
NIFEDipine IMMEDIATE release 20 mg

Cap
Commonly known as: aka PROCARD!A
Take 20 mg by mouth every day.
nitroglycerin 0.4 mg 51 tab
Commonly known as: aka N!TROSTAT
Place 1 Tab under tongue every five
minutes as needed.
polyethylene glycol17 gram Pwpk
Commonly known as: aka MIRALAX
Take 17 g by mouth once every day as
needed.
QUEtiapine 25 mg Tab
Commonly known as: SEROquel
3-4 tabs bedtime
Current Immunizations
FLU VACCINE SPLIT, PRESERV FREE
Kenalog
I
I
i
I
I
10/14/2013
7/15/2014 Deferred(Patient Refused)
Discharge Instructions
Swedish Medical Center

Dennis Lee Montgomery
INTERVENTIONAL RADIOLOGY
POST CEREBRAL ANGIOGRAM INSTRUCTIONS
Activity Instructions:
On day of discharge limit your activities.
Avoid strenuous exercise for 48 hours.
No driving for 24 hours after the procedure.
Do not lift, push, or pull anything heavier than 5 pounds for 3 days or as instructed by your
provider. (Example: Gallon of milk is 8 pounds).
Avoid stair climbing for 24 hours or as instructed by your provider. If stairs are unavoidable,
climb slowly, putting as little pressure as possible on the leg used for this procedure.
Avoid hot baths, hot tubs, or swimming pools for 24 hours.
Wound Care:
Remove dressing/bandage 24 hours after procedure or as directed by provider.
Remove Syvek patch after 24 hours by soaking with small amount of water and gently peel off
from skin.
You may shower when you return home from your procedure.
For successful wound care and healing:
Keep up good nutrition and hygiene.
Getting enough rest will help your wound healing.
Follow your physician's specific wound care instructions.
Wash your hands before any wound care.
January 6, 2015
Re: Dennis Lee Montgomery (DOB 7/11/1953)

To Whom It May Concern:
Mr. Dennis Montgomery unfortunately sustained recent multi-infarct strokes with
resultant severe left sided weakness and impaired vision. He completed
Swedish inpatient rehab unit under my guidance on 6/21/2014. He is now in
outpatient PT, OTto work on ongoing left sided weakness and speech therapy
for stroke related cognitive and memory impairments along with swallowing
difficulties. He has severe left shoulder pain impacting his stroke recovery. He
will also undergo neuropsychological testing to evaluate his cognitive strengths
and weakness.
Lastly, he is having false visual imagery related to his stroke and is being
followed by neuro-ophthalmology with Dr. Eugen May.
Please feel free to contact me if you have any questions.
Sincerely,
?~~
Paul Chuwn Lim, MD

Medical Director of Swedish Rehabilitation Services
Swedish Physical Medicine and Rehabilitation
1600 E Jefferson Street, Suite #600 1 Seattle, WA 98122
(clinic) 206-320-2600 1 (fax) 206-320-4054
Joe Eskridge, M.D.

Swedish Neuroscience Institute
550 17th Ave #500
Seattle WA 98122
206.320.4144
!
June 27, 2014
!
To Whom It May Concern
!
!
Dear Sirs,
I, Dr. Joe Eskridge recently treated Dennis Montgomery who is a 60 year old man who
suffered from a cerebral aneurysm. His aneurysm was detected in 2011. He does not
smoke and does not have any congenital blood vessel diseases that contribute to aneurysm
development.
High blood pressure can accelerate aneurysm growth and increase the risk of rupture and
stroke. Stress can increase blood pressure and contribute to aneurysm growth. On a
more probable than not basis stress related hypertension caused the development and
growth of his aneurysm.
I have performed over 5000 brain artery repair and embolization procedures over the
past 30 years. I was Professor of Radiology and Neurosurgery at the University of
Washington Medical School from 1987-2004.
!
Sincerely yours,
!
!
Joe Eskridge, M.D.
!
!
Exhibit 3
Case
Document164-3
127 Entered
Enteredon
onFLSD
FLSDDocket
Docket09/09/2015
10/26/2015 Page
Page32ofof64
IN THE UNITED STATES DISTRICT COURT

DENNIS L. MONTGOMERY
Plaintiff,
Civil Action No. 1:15-cv-20782-JEM
v.
JAMES RISEN, ET AL.,

Defendants.
DECLARATION OF UNDERSIGNED COUNSEL LARRY KLAYMAN WITH REGARD

TO LETTER FROM FBI GENERAL COUNSEL
Pursuant to 28 U.S.C. 1746, I, Larry Klayman, hereby declare under penalty of perjury
that the following is true and correct:
1. I am over the age of 18 and I make this declaration on personal knowledge and belief. I
am mentally and legally competent to make this declaration sworn under oath.
2. I, along with my Chief of Staff and paralegal Dina James, first met Ms. Deborah Curtis,
Assistant U.S. Attorney for the District of Columbia in the Criminal Division who is
primarily involved in national security issues, on July 28, 2015, after several phone calls
during the weeks prior to July 28, 2015.
3. During our first meeting, I explained to Ms. Curtis that my client, Mr. Dennis
Montgomery, was involved in civil litigation with James Risen and his publishing
companies over allegations that Mr. Montgomery had been defamed. The primary libel
occurred in his recently published book called Pay Any Price: Greed, Power, and Endless
War.
4. I suggested to Ms. Curtis that she might want to read a copy as even Mr. Risen had
Case
Document164-3
127 Entered
Enteredon
onFLSD
FLSDDocket
Docket09/09/2015
10/26/2015 Page
Page43ofof64
written that Mr. Montgomery was at the center of anti-terrorism efforts following the
tragic events of September 11, 2001.
5. During a subsequent meeting in Miramar, Miami, at the Federal Bureau oflnvestigation
("FBI") Field Office there, where Mr. James Baker, General Counsel of the FBI was not
present, when Mr. Montgomery turned over the hard drives, I again advised Ms. Curtis
and the agents that were present, Walter B. Giardina, Supervisory Special Agent, and
William J. Barnett, Special Agent, that the litigation was going forward and that Mr.
Montgomery was being deposed the following day by counsel for Mr. Risen and his
publishers.
6. My representations to Ms. Curtis and the special agents were not "off-hand comment[s],"
but instead to inform Ms. Curtis and the agents of the status of the civil case.
7. I believe that it was in the best interest of my client, Mr. Dennis Montgomery, myself as a
former Department of Justice prosecutor, and well as the Department of Justice, to be
fully forthright. This is why I put Ms. Curtis on notice from the first time I met her that
there was pending civil litigation.
8. With regard to the deposition, I told Ms. Curtis that I would be careful not to have Mr.
Montgomery disclose any classified information during his deposition. I also advised her
that Defendants had raised the issue of his alleged software and wanting to get access to
it, but that we were taking the position that it was irrelevant. See Objection to Portions of
Magistrate Judge's Order of August 22, 2015 [Dkt # 125].
9. In this context, I asked Ms. Curtis if Mr. Montgomery could have access to anything that
was not considered to be classified contained in the hard drives, including any
unclassified software should it have to be produced, and that was not considered
Case
Document164-3
127 Entered
Enteredon
onFLSD
FLSDDocket
Docket09/09/2015
10/26/2015 Page
Page54ofof64
contraband. I further asked her and the FBI agents to determine if it is classified. She
agreed on behalf of the U.S. Department of Justice, should it have to be produced in the
civil litigation concerning Mr. Risen and his publishers.
10. Additionally, I asked that an expeditious review be conducted of the information that was
provided, both because of Mr. Montgomery's failing health and also because of the
pending civil litigation.
I hereby swear under oath and penalty of perjury that the foregoing facts are true and
correct to the best of my personal knowledge and belief:
September 9, 2015
Exhibit 4
Case
Document164-4
127 Entered
Enteredon
onFLSD
FLSDDocket
Docket09/09/2015
10/26/2015 Page
Page22ofof62
IN THE UNITED STATES DISTRICT COURT

DENNIS L. MONTGOMERY
Plaintiff,
Civil Action No. 1:15-cv-20782-JEM
v.
JAMES RISEN, ET AL.,

Defendants.
DECLARATION OF DINA JAMES, i ARALEGAL, WITH REGARD TO LETTER

FROM FBI GENERAL COUNSEL
Pursuant to 28 U.S.C. 1746, I, Dina James, hereby declare under penalty of perjury that
the following is true and correct:
1. I am over the age of 18 and I make this declaration on personal knowledge and belief. I
am mentally and legally competent to make this declaration sworn under oath.
2. I was physically present with Mr. Larry Klayman during all meetings with Ms. Deborah
Curtis, Assistant U.S. Attorney and the Federal Bureau oflnvestigation.
3. I have reviewed Mr. Klayman's declaration and it is true and correct in all respects (see
attached).
I hereby swear under oath and penalty of perjury that the foregoing facts are true and
correct to the best of my personal knowledge and belief:
September 9, 2015
Exhibit 5
IN UNITED STATES DISTRICT COURT

CASE NO.: 15-cv-20782-Martinez
DENNIS MONTGOMERY,
Plaintiff,
v.
RISEN, ET AL.
Defendants.
I, Dennis Montgomery, being over 18 years of age and based on my personal knowledge and
belief, hereby declare under penalty of perjury that the following is true and correct:
1.
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 oflnvestigation ("FBI") when I turned over the drives pursuant to my
immunity agreement of July 28, 2015 and the inventory of what I turned over.
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.
2.
These documents have been and are being filed under seal and are being produced to
Defendants' counsel and Magistrate Judge Goodman subject to the court's protective
order.
Dated: October 21, 2015
Case 1:15-cv-20782-JEM Document 164-6

125-3 Entered on FLSD Docket 10/26/2015
09/04/2015 Page 1 of 4
Exhibit 6
Case 1:15-cv-20782-JEM Document

125-3of Entered
164-6
on FLSD
Docket 10/26/2015
09/04/2015 Page 2 of 4
Deposition
JAMES RISEN
Conducted
on June 19, 2015
1 (Pages 1 to 4)
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
3
1
2
-------------------------------X
)
DENNIS MONTGOMERY,
)
)
Plaintiff,
)
) Case No.:
v
) 15-cv-20782
)
JAMES RISEN, HOUGHTON MIFFLIN )
HARCOURT PUBLISHING CO.,
)
HOUGHTON MIFFLIN HARCOURT )
COMPANY ,
)
)
Defendant.
)
)
-------------------------------X
APPEARANCES
ON BEHALF OF PLAINTIFF DENNIS MONTGOMERY:
LARRY KLAYMAN,ESQUIRE
2020 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20006
(310) 595-0800
ON BEHALF OF DEFENDANT HOUGHTON MIFFLIN HARCOURT
COMPANY:
10
LAURA R. HANDMAN, ESQUIRE
11
DAVIS WRIGHT TREMAINE, LLP
12
13
Suite 800
14
Washington, D C 20006
15
(202) 973-4224
16
TRANSCRIPT Deposition of
JAMES RISEN
WASHINGTON, D C
Friday, June 19, 2015
9:02 a.m.
Job No.: 85828
Pages: 1 - 407
Reported by: Donna Marie Lewis, RPR, CSR
17
MICAH RATNER, ESQUIRE
18
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Suite 800
21
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(202) 973-4223
23
ALSO PRESENT:
24
ANTHONY FIELDS, VIDEOGRAPHER
25
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Transcript of deposition of JAMES

RISEN, held at the offices of:
1919 Pennsylvania Avenue NW
Suite 800
(202) 973-4200
Pursuant to re-Notice before Donna Marie
Lewis, RPR, CSR, Notary Public of and for the District
of Columbia.
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INDEX
WITNESS:
JAMES RISEN
EXAMINATION BY:
By Mr. Klayman
PAGE
6
EXHIBITS
EXHIBITS:
DESCRIPTION
PAGE
No. 1 Email
47
No. 2 Email dated 9/23/11
99
No. 3 Book, Pay Any Price
123
No. 4 Playboy Article
124
No. 5 Notes
147
No. 6 New York Times Article
164
No. 7 Email dated 10/5/12
176
No. 8 Contract with Houghton Mifflin
191
No. 9 Declaration
203
No. 10 Amended Complaint
211
No. 11 Declaration of Dennis Montgomery
229
No. 12 Article from 2011, Bates No. DEFS002587 254
No. 13 Bates DEFS002528 thru 2530
312
No. 14 Bates DEFS004140 thru 4147
360
No. 15 Bates DEFS003992 thru DEFS004003
362
No. 16 Bates DEFS000419 thru DEFS000424
363
No. 17 Bates DEFS003882
379
PLANET DEPOS | 888.433.3767 | WWW.PLANETDEPOS.COM

125-3of Entered
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on FLSD
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Deposition
JAMES RISEN
Conducted
on June 19, 2015
28 (Pages 109 to 112)
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MS. HANDMAN: And Mr. Risen was on

assignment.
MR. KLAYMAN: I will prove what was said
when -MS. HANDMAN: And I was out of the country
the week that you wanted to take the deposition, that
you had noticed the deposition.
MR. KLAYMAN: I have emails to the contrary.
MS. HANDMAN: You do not.
MR. KLAYMAN: They'll be produced within the
motion as part of the pattern of conduct.
BY MR. KLAYMAN:
Q Now Mr. Risen, is it correct that you -other than what was testified to in front of Congress
which you claim was testified to references to
documents at the CIA, you did not have access to any
government documentation in writing your book, Pay Any
Price?
A No, we did because there were lots of court
records related to FBI investigations, Air Force
investigations, lots of emails and other records
related to and depositions, so there were many
government documents that we relied on that were all
public, had filed in court cases. And when, as I
said, when the Senate Chambliss referred specifically
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Q Now, the only documents you got were those

documents that were public?
A Court records, yes. Public court records.
Q Okay.
A And we didn't -- I didn't attribute anything
to classified documents that I had obtained from the
CIA directly in connection with this.
Q So with regard to your reporting -- excuse
me, with regard to what you wrote about Mr. Montgomery
in your book, Pay Any Price, you didn't have any
documents that weren't otherwise public. Correct?
MS. HANDMAN: Objection.
THE WITNESS: I have to review that. I
can't -- I think I have given -- I don't recall
anything that I haven't turned over.
BY MR. KLAYMAN:
Q Okay. I think you answered the question,
I'm just laying the foundation. However, when
Mr. Montgomery wanted to give you a story about the
mass collection of metadata and other intelligence
information on virtually the entire American
population by the CIA which you demanded documents
from him or you wouldn't report to story?
A He made vague assertions that -- and never
provided any details. He kept saying that I can't
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to having reviewed a whole series of CIA documents

that corroborated the media reports, the many media
reports that had been published prior to our story and
Pay Any Price that showed that people at the CIA
believed that this was a bogus intelligence operation.
Q You never asked any of your government
sources for backup documentation with regard to
Mr. Montgomery. Did you?
THE WITNESS: Yes, of course. We always
ask. But trying to get classified documents is
difficult for a reporter.
THE WITNESS: So it always -- you know, it
is not something that you always get.
BY MR. KLAYMAN:
Q And you didn't get them here with -A As I said, we got lots of government public
records from government cases, including the FBI, the
whole investigation, Mr. Heraldson's phone calls
with -- or phone call with Mr. Montgomery on behalf of
the FBI. So there is lots of documentation.
Q But the only thing that you got -A Interviews with eTreppid employees with the
FBI, things like --
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really tell you what I'm talking about because I would

get in trouble. And so he never provided any details
at all, even in conversations. And then I said well,
okay, provide some evidence and I will write a story.
I think he has done with other reporters as well as
many other people. And I think -- you know, so I kept
saying, you provide me the evidence and I will write
the story. And he was so vague about what he was
talking about that there was never any -- it was never
clear exactly what the story was. He kept talking
about possible hacking on behalf of the government but
he was never providing much detail.
Q And neither you nor Mr. Lichtblau or anyone
else sought to confirm his story by mentioning it to
any of the government people that you communicated
with concerning Mr. Montgomery?
A No. I don't think that is accurate. I
think we did. I think I tried to talk to other people
about it, but there was -- there was so little
specifics that he had provided that -- in fact no
specifics.
Q But there is nothing in any of the documents
that you produced to show or even suggest that, is
there?
A You know, I --

125-3of Entered
164-6
on FLSD
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09/04/2015 Page 4 of 4
Deposition
JAMES RISEN
Conducted
on June 19, 2015
31 (Pages 121 to 124)
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drive?
A As I said I don't recall a thumb drive. I
recall going through the documents and getting the
documents from Eric. I don't remember exactly how I
got them.
Q So Eric lied about the thumb drive?
THE WITNESS: I don't know. He may have had
a thumb drive and then transferred them to his
computer and then given them to me. I don't remember.
Somehow I got them and he had them.
BY MR. KLAYMAN:
Q Well, other than the public documents that
you claim that you had access to these are the only
other documents that you got with regard to
Montgomery?
THE WITNESS: What are you referring to?
BY MR. KLAYMAN:
Q The thumb drive of 20,000 pages or whatever
form they came?
A That was the court records, the court
documents. It was not 20,000 as far as I can tell.
Q Now it says here in Exhibit 1 that
Mr. Lichtblau spent eight hours with the source, the
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MS. HANDMAN: Sure. We are taking about a

ten minute break.
MR. KLAYMAN: You need ten minutes to go to
the bathroom.
THE VIDEOGRAPHER: We are going off of the
record. The time is 11:25.
(Risen Deposition Exhibit No. 3 was marked
for identification)
THE VIDEOGRAPHER: Going back on the record.
The time is 11:31.
BY MR. KLAYMAN:
Q Mr. Risen, you just testified that
Mr. Montgomery never gave you any documents to back up
his story. Correct?
A Which story?
Q The story about mass surveillance on
American citizens and -A Right.
Q Judges and whatnot?
A Right.
Q And you are aware that the reason he didn't
give it as he claimed was he didn't want to give you
classified information. Correct?
THE WITNESS: I'm not sure. He kept saying
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source being Mike Flynn?

A Yeah, I believe it was Flynn.
Q Did he travel to Mike Flynn's office?
A I don't remember frankly where they met.
Q Who paid for his travel expenses?
A I'm sure it was the New York Times.
Q Where is Flynn's office?
A It is in California.
Q Where in California?
A I don't remember where it was at that time.
I didn't go see him so I don't know.
Q I will show you, I showed you Exhibit 2
where you thanked him for the documents, Mr. Flynn.
Do you think there is anything here or anything that
you haven't explained of the presentation that
Montgomery made to the CIA. Did Mr. Flynn then send
you other documents purportedly showing
Mr. Montgomery's presentation to the CIA?
A I think he just gave us all of the court
records. And I don't recall. I don't even recall
this conversation frankly.
Q I will show you what I will ask the court
reporter to mark as Exhibit 3. Is this your book, Pay
Any Price.
A Is it. Is it okay if I go to the bathroom?
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he was going to then he wouldn't do it. And he gave

different reasons for it it seems like.
BY MR. KLAYMAN:
Q Are you saying he never said to you I can't
give it to you because it is classified?
A I think sometimes he -- well, it was more
about I have -- you know, they would sanction me or
they would come after me. But some other times it
seemed it wasn't clear whether that was always the
reason or not.
Q And you say that based your reporting in
part on stories written by others such Aram Roston of
Playboy magazine who wrote a story, The Man Who Conned
the Pentagon?
A Yeah. That was written long before our
story.
Q I will show you what is will ask the court
reporter the mark as Exhibit 4.
(Risen Deposition Exhibit No. 4 was marked
for identification)
BY MR. KLAYMAN:
Q Yes, that is the Playboy story by Mr. Aram
Roston. That is the story that you are referring to
in Playboy magazine?
A It looks like it, yes.

09/04/2015 Page 1 of 2
Exhibit 7
8/31/2015
Case
Gmail-Fwd:Montgomeryv.Risen,No.1:15-cv-20782-JEM
164-7
09/04/2015 Page 2 of 2
Fwd:Montgomeryv.Risen,No.1:15cv20782JEM
Ratner,Micah<MicahRatner@dwt.com>
Date:Mon,Aug3,2015at2:27PM
Subject:Montgomeryv.Risen,No.1:15-cv-20782-JEM
To:"LarryKlayman(leklayman@gmail.com)"<leklayman@gmail.com>
Cc:"Handman,Laura"<laurahandman@dwt.com>,"Sandy.Bohrer@hklaw.com"<Sandy.Bohrer@hklaw.com>,
"Brian.Toth@hklaw.com"<Brian.Toth@hklaw.com>
Mr.Klayman
Undertheschedulingorder,expertswitnesssummariesandreportsareduetoday.Theattachedidentifiesan
experttoyoutodayunderFed.R.Civ.P.26(a)(2)whomaytesttherelevantsoftwaretodeterminewhetherit
worksastheAmendedComplaintasserts.
Ofcourse,youobjectedtoproducingthesoftware.Noexpertcantestituntilafteritsbeenturnedovertous.As
youknow,unlesswecometosomeresolutioninthemeetandconfer,JudgeGoodmanwilldecidewhetheryou
mustproducethesoftware.
Ifandwhenyourclientproducesatestableversionoftherelevantsoftware,wewillproceedtoprovideexpert
summariesandreports,ifany,withinareasonabletimeafteryourclientsproduction.
Regards,
Micah
MicahRatner |DavisWrightTremaineLLP
1919PennsylvaniaAvenueNW,Suite800|Washington,DC20006-3401
Tel:202-973-4223|Fax:202-973-4423
Email:micahratner@dwt.com|Website:www.dwt.com
Anchorage|Bellevue|LosAngeles|NewYork|Portland|SanFrancisco|Seattle|Shanghai|Washington,D.C
Defendants'DisclosureUnderRule26(a)(2)(A).pdf
6K
https://mail.google.com/mail/u/0/?ui=2&ik=e027b36078&view=pt&search=inbox&msg=14f8570627f8507b&siml=14f8570627f8507b
1/1

09/04/2015 Page 1 of 3
Exhibit 8

09/04/2015 Page 2 of 3
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 EXPERT DISCLOSURE UNDER RULE 26(a)(2)(A)
Under Federal Rule of Civil Procedure 26(a)(2)(A), Defendants hereby disclose the
identity of the following witness who Defendants may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705:
Stephen R. Bissell
Bissell Group LLC
19855 NW Nestucca Dr.
Portland, Oregon 97229
(503) 939-9392
Dated: August 3, 2015
Respectfully submitted,
s/Micah J. Ratner
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

09/04/2015 Page 3 of 3
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 August 3, 2015, I served this document by email on all counsel of record.
s/Micah J. Ratner
Exhibit 9

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.
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
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.
* * *
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
Exhibit 10
Case
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U. . Department of Ju sti ce
Federal Bureau of Investigati on
Washington, D. C. 20535-000 I
September 8, 20 15
VIA EMAIL
Larry Klayman, Esq.
7050 W. Palmetto Park Road
Suite 15-287
Boca Raton, FL 33433
leklayman@gmail.com
Dear Mr. Klayman,
This is in response to your letter dated August 26, 2015, which you sent to me and
Assistant U.S. Attorney Deborah Curtis (hereinafter " Letter"). In the Letter you excerpt (and
fully append thereto) an Order dated August 22, 2015, issued by U.S. Magistrate Judge Jonathan
Goodman, in the matter of Dennis L. Montgomety v. James Risen, et al. , Case No. 15-20782CIV, U.S. District Court for the Southern District of Florida, directing you to advise me and
AUSA Curtis that your client, Dennis Montgomery, has been ordered by that Court to produce
certain software in discovery. The Order, at paragraph 6, also directs your client to use his "right
of continued access" to non-classified information to obtain the original software (or a copy of it)
from the FBI.
In addition to the Letter and Order, I have been advised that there is a transcript from an
August 21 , 2015, Discovery Hearing before Magistrate Judge Goodman, during wh ich you made
certain representations about the Government's undertakings with respect to the software at issue
and the Government ' s knowledge of the status of this litigation (hereinafter "Transcript"). Prior
to addressing the means by which your client, Mr. Montgomery, will be afforded access to the
materials he provided to the FBI, the Government will augment the record 1 and correct any
misunderstandings about the conditions under whi ch the FBI took possession of the materials
from Mr. Montgomery. 2
As to any factual matters set forth in this letter about which I do not have personal knowledge, I set forth those
facts herein based upon information provided to me in my official capacity.
2
This letter focuses on the conditions under which the FBI took possession of the materials and is not intended as a
comprehensive response to other statements made by you to Magistrate Judge Goodman at the August 21 , 2015
hearing.
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First, the Washington Field Office of the FB I, in conjunction with the U.S. Attorney's Office for
the District of Columbia, is engaged with you on the sole issue of your client' s allegation that
U.S . Government officials may have engaged in violations of federal criminal law. To support
this allegation, Mr. Montgomery expressed a desire to voluntarily produce tangible evidence in
the form of computer hard drives. Through an attorney proffer, you provided an inventory of
these materials. Based upon that proffer and your client's representation that certain relevant
information on the drives was highly classified, the Government agreed to grant your client
production immunity for those items, as memorialized in a letter agreement dated July 28, 20 15.
During discussions about the production, you indicated that "time was of the essence" in
producing the hard drives to the FBI because of your client' s ill health. 3 You did not link any
desire to move quickly because of any pending civil litigation.
Second, in advance of providing the hard drives to the FB I, you offered that your client
had other materials that were wholly irrelevant to the FBI inquiry that may be on the drives. You
also conveyed that your client wished to tum over every compute r drive in hi s possession to the
authorities as part of this complaint review process. Accordingly, you requested that Mr.
Montgomery be afforded the option to retrieve certain personal info rmation from the drives, if
necessary. Your explanation centered on your client' s ill health as well as his desire to make a
ful some disclosure to the Government in the context of the FB I inquiry. Again, you did not
associate the potential retrieval of this information with any pending civil litigation. On August
12, 2015, the Government agreed to the fo llowi ng in an email:
Finally, you indicated that your client wi ll also be producing certain other
information housed on these electron ic drives that is not relevant to this inquiry.
Because your client will not retain any copies of the materials which he is producing,
you have asked whether he can retrieve copies of certain items in the Government's
possession, upon request. While we have no genera l objection to establi shing a
procedure by which Mr. Montgomery may receive copies of the fil es he has
produced, please be advised that the Government may not return to any citizen items
which are determined to be contraband, i.e. presently classified information, chi ld
pornography, etc. Also, such requests should not unduly burden the FB I nor interfere
with the ongoing review process.
Next, based again on your client' s medical condition and convenience, you specificall y
requested that Mr. Montgomery be permitted to produce the materials to the FBI on August 19,
2015, in Miami, Florida. On that date, at the FBI Field Office in Miramar, Florida, the FBI took
possession of forty-seven computer hard drives from your client that purportedl y contain
In the Transcript at page 45 , lines 9-13, you state, "And what I said was that we did inform the assistant U.S.
attorney, Deborah Curtis, of the civil litigation. We informed her of the need to move quickly and they agreed to
move quickly. And we informed them that we want to do everyth ing according to the law and that's important."
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evidence of the above-referenced violations. The FBI took possession of these drives with the
sole understanding that the Government would be conducting a review of your client's
allegations, and fo r no other purpose. Further, based upon your client' s representations that Top
Secret, compartmented information may reside throughout the hard drives, the Government
resolved to treat the materia ls under review as presumptively classified fo r security purposes.
However, the Government neither agreed to undertake, nor understood any obligation to
conduct, a classification review of any of these materials for the purpose of any civil litigation.
Also, during the course of this nearly three hour meeting at the FBI Field Office in
Miramar, Florida, you made an off-hand com ment that you were in Miami for a deposition the
following day in a civil case. You never asked, and the FBI never agreed, fo r the Government to
undertake a classification review of software in connection with that civi l case. Notabl y, fo r the
record, this is in stark contrast with the Transcript at page 48, lines 2-1 0:
T HE COURT: All right. So what I hear you
representing to me is that in making the arrangements to turn
over this software and other materials to the FBI, you advised
AUSA Curtis about this civil litigation?
MR. KLAYMAN: Correct.
THE COURT: And we need for the FBI to proceed
quickly and make a determination one way or the other whether
thi s software is classified and you told her that?
MR. KLAYMAN: Correct.
Notwithstanding the fact that the Government never agreed to undertake a classification
review of any material on the hard drives, the Government is prepared to facilitate Mr.
Montgomery' s reasonable access to unclassified information resident on the drives. This offer
relates specificall y to the software at issue, to the extent that it exists on any of the drives.
However, turning back to your August 26, 2015 letter, notably absent is any information
which would assist the Government in locating and producing the software at issue in
Montgomery v. Risen. As you know, when he gave the hard drives to the FBI on August 19,
2015, your c lient a lso gave the FBI a sheet of paper stating that the hard drives contained 51.6
million files amounting .to 600 million pages. Furthermore, as stated previously, your client
claimed that classified info rmation was contained throughout the hard drives.
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In view of the massive amount of information on the hard drives, there is no reasonable
way for the Government to locate and provide the a lleged software, absent specific instructions
from your cli ent. A nd because of the claim that classified infom1ation is contained throughout
the hard drives, the Government cannot simply provide you with copies of all the hard drives.
To that end, please provide the fo llowing detailed info rmation: (1) the number or designator of
the drive on which the software is present; (2) the file name of the software; (3) the creation date
of the software; (4) any other identifier(s) for the software. In the event the software is located,
appropriate U.S. Government agencies and/or departments will conduct a classification review of
the software. These securi ty measures are necessary based on the representations made by Mr.
Montgomery that classified information resides throughout the drives.
Please provide the above-described information, and any additional necessary fo llow-up
information, to the FBI Washington Field Office's Chief Division Counsel at 202-278-2000.
S incerely,
u~
~mes A. Baker
General Counsel
Federal Bureau of Investigation
cc:
Magistrate Judge Jonathan Goodman

Laura Handman , Esq., counsel for Mr. Risen

Montgomery V Risen # 164 - P Objection To MJ Order Re Deadline For Source Code

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Case 1:15-cv-20782-JEM Document 164 Entered on FLSD Docket 10/26/2015 Page 1 of 14

IN UNITED STATES DISTRICT COURT

PLAINTIFFS OBJECTION TO MAGISTRATE JUDGES ORDER OF

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Case 1:15-cv-20782-JEM Document 164 Entered on FLSD Docket 10/26/2015 Page 8 of 14

an eTreppid employee Sloan Venables began to suspect Montgomerys software

Case 1:15-cv-20782-JEM Document 164 Entered on FLSD Docket 10/26/2015 Page 9 of 14

was determined not to be a source of accurate information. (Book at 47)

Case 1:15-cv-20782-JEM Document 164 Entered on FLSD Docket 10/26/2015 Page 10 of 14

A Yeah. That was written long before our story.

Case 1:15-cv-20782-JEM Document 164 Entered on FLSD Docket 10/26/2015 Page 11 of 14

Case 1:15-cv-20782-JEM Document 164 Entered on FLSD Docket 10/26/2015 Page 12 of 14

Case 1:15-cv-20782-JEM Document 164 Entered on FLSD Docket 10/26/2015 Page 13 of 14

Dated: October 26, 2015

Case 1:15-cv-20782-JEM Document 164 Entered on FLSD Docket 10/26/2015 Page 14 of 14

/s/ Larry Klayman

Case 1:15-cv-20782-JEM Document 164-1 Entered on FLSD Docket 10/26/2015 Page 1 of 4

Defense counsel shall, by October 19, 2015, file a Notice of Filing on

CM/ECF, attaching herOctober 5,2015 email toAssistant General Counselatthe FBI,

Plaintiff shall, by October 20, 2015, file a Notice of Filing on CM/ECF,

General Counsel Schwartz, a comprehensive set of instructions (the best available to

Case 1:15-cv-20782-JEM Document 164-2 Entered on FLSD Docket 10/26/2015 Page 1 of 8

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Case 1:15-cv-20782-JEM Document 164-2 Entered on FLSD Docket 10/26/2015 Page

After Visit Instructions for Dennis Lee Montgomery's visit on 10/20/2015

Follow-up Provider Specialty

Future Appo intmen~s

Case 1:15-cv-20782-JEM Document 164-2 Entered on FLSD Docket 10/26/2015 Page 5 of 8

Nfontgomery, Dennis Lee (MR# 1001676690)

NIFEDipine IMMEDIATE release 20 mg

Swedish Medical Center

Case 1:15-cv-20782-JEM Document 164-2 Entered on FLSD Docket 10/26/2015 Page 6 of 8

Re: Dennis Lee Montgomery (DOB 7/11/1953)

Paul Chuwn Lim, MD

Case 1:15-cv-20782-JEM Document 164-2 Entered on FLSD Docket 10/26/2015 Page 7 of 8

Joe Eskridge, M.D.

Case 1:15-cv-20782-JEM Document 164-2 Entered on FLSD Docket 10/26/2015 Page 8 of 8

Case 1:15-cv-20782-JEM Document 164-3 Entered on FLSD Docket 10/26/2015 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

JAMES RISEN, ET AL.,

DECLARATION OF UNDERSIGNED COUNSEL LARRY KLAYMAN WITH REGARD

Case 1:15-cv-20782-JEM Document 164-4 Entered on FLSD Docket 10/26/2015 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

JAMES RISEN, ET AL.,

DECLARATION OF DINA JAMES, i ARALEGAL, WITH REGARD TO LETTER

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Case 1:15-cv-20782-JEM Document 164-5 Entered on FLSD Docket 10/26/2015 Page 2 of 2

IN UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

Based on my personal knowledge and belief, upon searching my memory, I do not

Dated: October 21, 2015

Case 1:15-cv-20782-JEM Document 164-6

Case 1:15-cv-20782-JEM Document

UNITED STATES DISTRICT COURT

2020 Pennsylvania Avenue, NW

ON BEHALF OF DEFENDANT HOUGHTON MIFFLIN HARCOURT

LAURA R. HANDMAN, ESQUIRE