Montgomery V Risen # 177 - D Resp To K Objection & Req To Stay

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 1 of 21
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 OPPOSITION TO PLAINTIFFS OBJECTION TO

MAGISTRATE JUDGES OCTOBER 19, 2015 ORDER
HOLLAND & KNIGHT LLP

Sanford L. Bohrer
Sandy.Bohrer@hklaw.com
Brian W. Toth
Brian.Toth@hklaw.com
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Tel: (305) 374-8500
Fax: (305) 789-7799
DAVIS WRIGHT TREMAINE LLP

Laura R. Handman (admitted pro hac vice)
laurahandman@dwt.com
Micah J. Ratner (admitted pro hac vice)
micahratner@dwt.com
1919 Pennsylvania Ave., NW, Suite 800
Washington, D.C. 20006
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants
Under Magistrate Judge Rule 4(a)(1), Defendants James Risen, Houghton Mifflin
Harcourt Publishing Company (HMH), and Houghton Mifflin Harcourt Company (HMHC),
improperly sued as HMH Holdings, Inc., (collectively Defendants), file this Opposition to
Plaintiffs Objection to Magistrate Judges October 19 Order. (ECF No. 164.)
I.
PRELIMINARY STATEMENT
The Court should overrule Dennis Montgomerys (Montgomery) objection

(Objection) to Magistrate Judge Jonathan Goodmans October 19, 2015 discovery order (ECF
No. 164) (the Discovery Order) ordering that Montgomery produce his software at issue in this
case and documents relating to its location, for the following reasons:
First, Montgomerys Objection does not cite, or provide any argument for how he
overcomes, the very difficult standard of review to overturn a magistrate judges discovery
order as clearly erroneous or contrary to law.
Second, Judge Goodmans Discovery Order finding that Montgomerys software is
highly relevant to the element of falsity, which Montgomery must prove in this libel suit, is not
clearly erroneous or contrary to law. Montgomery merely repeats arguments that Judge
Goodman has already rejected three times. Moreover, Judge Goodman correctly rejected
Montgomerys specious argument that, because Risen did not rely on the software at issue, it is
not relevant. What Risen relied upon before publication is relevant to fault and the fair report
privilege, but it does not matter for falsity. What matters for falsity, as Judge Goodman correctly
held, is whether the software works as Montgomery claims in his Amended Complaint or
whether it does not work as suggested in Chapter 2 (Chapter) of Risens book, Pay Any
Price: Greed, Power, and Endless War (the Book).
Third, the Court should reject Montgomerys suggestion that he now somehow does not
have possession, custody, or control over his own software that lies at the heart of his burden to
prove falsity. Montgomery waived this argument by waiting to assert it almost three months
after he served his objections to Defendants discovery requests. But even if the Court
considered this untimely argument, it does not provide a basis for overturning the Discovery
Order. Not surprisingly, he does not state that he lacks control over his own software, so he must
produce it. And his argument is just the latest change of story that shows his bad faith.
Fourth, the Court should reject Montgomerys assertion that Defendants waived the right
to have an expert test and testify about the software. As Judge Goodman found in denying
Montgomerys motion to stay the August 22 discovery order pending his objection, this
argument is circular and unconvincing because Defendants were unable to provide a full
expert report only because Montgomery has refused to produce the software.
Finally, the Court should deny Montgomerys request for a stay because he fails to put
forth any argument or cite any authority to support his request for a stay pending the Objection,
much less overcome the high standard of likelihood of success.
II.
A.
FACTUAL BACKGROUND
Defendants June 1 Request for the Location of the Relevant Software and its
Production, and Montgomerys July 1 and 15 Refusals to Comply
On February 24, 2015, Montgomery brought this libel action against author James Risen,
his publisher, and its holding company, alleging that statements in the Chapter that report
allegations that Montgomery defrauded the federal government by selling it useless software
were false.1 To defend against Montgomerys claim that statements in the Book are false
because the software allegedly works, on June 1, Defendants requested a copy and the locations
of the software referred to in the Amended Complaint, including Al Jazeera software (noise
filtering software), the object recognition software, and video compression software mentioned
in the Chapter.2
On July 1, Montgomerys counsel objected to the request to produce the software as
vague, ambiguous, overly broad, and burdensome, and the request to disclose the
1
(ECF No. 44, Am. Compl. 23, 48, 49, 65, 120-27, 181-84, 202-21, 230-36, 245-48, 259,
262.) A motion to dismiss or transfer (for lack of jurisdiction, improper venue, transfer under 28
U.S.C. 1404(a), and failure to state a claim) has been fully submitted since June 11, 2015.
(ECF No. 77.) Defendants intend to move for summary judgment by or before December 14,
2015, after discovery closes on November 19, 2015, arguing, inter alia, Montgomerys failure to
produce evidence that would permit a reasonable jury to find substantial falsity.
2
(ECF No. 90-1, Defs. Interrogs. 9-15 & Reqs. for Produc. 7-15, 26-32, 36-47, 53.)
2
locations as largely irrelevant.3 After Defendants warned Montgomerys counsel that his
broad, boilerplate objections violate the local rules, on July 15, Montgomery objected to
Defendants discovery again, refusing to respond concerning the location of the relevant
software.4 He also refused to produce a copy of any software, even under the protective
order, asserting that he is not legally permitted to produce secret classified information.5 He
did not object on grounds that the software was not in his possession, custody, or control.
B.
Defendants Show Montgomerys Past Cases Find the Software Is Not

Classified and His Pattern of Refusing to Produce the Software
On August 4, 2015, Defendants explained in their Pre-Hearing Memorandum to Judge

Goodman that orders in Montgomerys previous cases show that his software is not classified,
yet he has repeatedly refused to produce it. (ECF No. 94.) In a case in which Montgomerys
former employer, eTreppid, sued Montgomery for allegedly misappropriating the subject
software, the U.S. government moved for and obtained a protective order under the state secrets
privilege to protect certain classified information from discovery (U.S. Protective Order).6
However, the U.S. Protective Order specifically excluded Montgomerys software from its
scope.7 Thus, the judge in Nevada found that [t]he clear understanding in drafting and issuing
th[e] [U.S.] protective order was that the parties would be discussing the nature and capabilities
of the technology, and the type of work each party performed for the government.8
Nonetheless, Montgomery refused to produce the software in both the Nevada litigation
and in his later bankruptcy proceedings in which the U.S. Protective Order was also entered. In
3
(Pl.s July 1 Resp. & Objections to Interrog. 9 & Reqs. for Produc. 8, Defs. Mem. in Supp. of
Sanctions Ex. 5, ECF No. 166-1.)
4
(ECF No. 90-2, Pl.s July 15 Resp. & Objections to Interrog. 9.)
5
(Id. 9-15) (objecting that the interrogatory calls for information some of which the Plaintiff is not
legally permitted to disclose as being confidential or secret); (Id., Pl.s July 15 Resp. & Objections
to Reqs. for Produc. 7-15, 26-32, 36-47, 53) (objecting on grounds of legal restrictions on the
Plaintiff responding or that he is not legally permitted to disclose all documents or information).
6
(Montgomery v. eTreppid Technologies, Inc., 3:06-cv-00056-PMP-VPC (eTreppid), ECF No.
253 (D. Nev. Aug. 29, 2007), Defs. Pre-Hearing Mem. Ex. 2, ECF No. 94-2.)
7
(Id. at 2-3, 4(c) (stating that [t]his Order does not preclude the Parties from serving or taking
any discovery . . . relating to . . . [t]he computer source code, software, programs, or technical
specifications relating to any technology owned or claimed by any of the Parties.).
8
(eTreppid, ECF No. 645, at 6 n.3, Defs. Pre-Hearing Mem. Ex. 3, ECF No. 94-3.)
3
the Nevada action, the magistrate and district judges repeatedly ordered Montgomery to produce
the software, but he refused.9 Thus, the district judge held Montgomery in contempt, imposing a
penalty of $2,500 per day until he produced the software.10 Instead of producing the software,
Montgomery settled the action and signed confessions of judgment for $25 million.11 Then,
Montgomery declared bankruptcy, continued to refuse to produce or describe the software in
bankruptcy, and was thus denied discharge.12 Following this same pattern here, Montgomery is
withholding the software again when it is central to his burden to prove substantial falsity.
C.
Montgomery Testifies in His August 20 Deposition that He Gave the

Software to the FBI and Did Not Keep a Copy
In Montgomerys August 20, 2015 deposition, he testified that he searched for the
software in response to Defendants discovery requests and gave his only copy of the software to
the FBI on August 19, 2015. (Pl.s Dep. Tr. 127:12-15; 128:1-25; 129:1-4; 131:12-22; 132:2123, Defs. Mem. in Supp. of Sanctions Ex. 2, ECF No. 166-2.) Notably, Montgomery testified:
Q:
A:
Q:
A:
Do you have the software that you used for the Al Jazeera work?
No.
Where is it?
I gave it to the government.
(Pl.s Dep. Tr. 127:13-16.) Thus, Montgomery testified under oath less than two months ago that
he gave the software to the government.
D.
Montgomerys Counsel Represents to Judge Goodman in the August 21

Hearing that Montgomery Gave the FBI the Only Copy of the Software
Days Before
On August 21, Judge Goodman held a hearing on the adequacy of Montgomerys

responses and objections to Defendants discovery requests, including the dispute over
Montgomerys refusal to produce the software. At the hearing, Montgomerys counsel
confirmed what Montgomery testified about at his deposition the day before that on August 18
or August 19, Montgomery, without seeking leave of court or informing Defendants, turned
9
(Id., ECF No. 645; eTreppid, ECF Nos. 728, 765, 769, Defs. Pre-Hearing Mem. Ex. 4, ECF
No. 94-4.)
10
(eTreppid, ECF No. 815, at 3-5, Defs. Pre-Hearing Mem. Ex. 5, ECF No. 94-5.)
11
(eTreppid, ECF Nos. 897, 898, Defs. Pre-Hearing Mem. Ex. 6, ECF No. 94-6.)
12
(eTreppid, ECF Nos. 1206, 22, 1208, 22, Defs. Pre-Hearing Mem. Ex. 8, ECF No. 94-8.)
4
over to the FBI and to the Department of Justice what he claimed was the one and only copy of
the software that Defendants have since June 1 requested from Montgomery in this action.
Montgomerys counsel represented the following to Judge Goodman:
THE COURT: The FBI has the software?
MR. KLAYMAN: They have the software, yes.
THE COURT: How did they get it?
MR. KLAYMAN: Because Mr. Montgomery provided it to them.
THE COURT: When?
MR. KLAYMAN: He provided it to them three days ago. It has been in the
process to provide that to them and he provided them a lot of other information
too, which they are looking at because it is classified information and he is a
whistleblower.
***
THE COURT: And you did mention to me three days ago either you had or
Mr. Montgomery submitted the software so the FBI so the FBI could confirm one
way or the other if the software contained classified information; is that correct?
MR. KLAYMAN: That is correct.
THE COURT: And so when this software was turned over three days ago, did
either you, or Mr. Montgomery, keep a copy, or you just gave the software?
MR. KLAYMAN: We just gave it to them.
THE COURT: No copies?
MR. KLAYMAN: It was just the software and relative to this case the software is
included.
(Aug. 21 Hrg Tr. 6:25; 7:1-10; 8:7-18, ECF No. 111-1.) Montgomerys counsel thus
represented to Judge Goodman that he gave the software to the FBI and did not keep a copy.
The judge agree[d] with [Defendants] that the software is highly relevant for the case.
(Id. 32:23-24.) He credited the Nevada courts finding that the software was not classified. (Id.
30:18-23; 40:7-47:1.) Relying on Montgomerys counsels representation that they gave the FBI
the software, the judge then order[ed] Mr. Montgomery to turn over that software and to take
advantage of his right of continued access to nonclassified information. (Id. 79:24-80:1.)
E.
The August 22 Order to Produce the Software and Obtain It from the FBI
On August 22, Judge Goodman entered a written order requiring Montgomery to use his
self-described right of continued access to non-classified information (in relation to his turning
over the subject software to the FBI) and produce the software to Defendants. (Aug. 22 Order
6, ECF No. 107.) The order also required him to produce all documents concerning
Defendants request for production number 7 about communications with persons who know
about the software and of its location, which would now include documents related to the
disclosure and production of the subject software to the FBI (id. 5). It required him to turn
over all documents . . . related to the disclosure and production of the subject software to the
FBI by August 31, and to produce the software to Defendants by September 4. (Id. 5-6.)
F.
Montgomery Fails to Comply with the August 31 Deadline
On August 31, 2015, although ordered to produce all documents related to the disclosure
and production of the software to the FBI by that day (Aug. 22 Order 5), Montgomery failed
to comply. Instead, Montgomery moved for a stay of the part of the August 22 order requiring
him to produce the software and related documents pending his objection. (ECF No. 112.)
G.
The September 3 Denial of Montgomerys Motion to Stay the Order to

Produce the Software
On September 3, 2015, Judge Goodman issued an order denying Montgomerys motion

to stay. (Stay Order, ECF No. 122.) Judge Goodman reiterated that Montgomery shall produce
by September 4, 2015 all documents encompassed in paragraph 6 of the [d]iscovery [o]rder and
shall also produce the software by using the self-described right of continued access to the
software which he turned over to the FBI without maintaining a copy for himself. (Id. at 2.)
Judge Goodman found that Montgomery was not likely to succeed on the merits of his
objection that the software is not relevant because Risen did not have the software when he
wrote the Chapter. (Id. at 4.) Judge Goodman was not at all persuaded by Montgomerys
argument and instead agreed with Defendants position that the software is highly relevant.
(Id. at 5.) Judge Goodman recognized that the theme of Montgomerys Amended Complaint is
that Risen falsely accused Montgomery of being a con man and a fraud who tricked the
Government into purchasing unworkable object recognition software and who asked that tests of
the software be falsified. (Id.) Judge Goodman rejected Montgomerys argument, advanced
again here, reasoning that Plaintiffs burden to prove falsity does not hinge on whether he
[Risen] ever had a copy of the software but rather the critical fact issue is whether in fact the
software worked. (Id.) Accordingly, Defendants have the right to inspect and test the
software, Judge Goodman concluded; It is highly relevant and Montgomery must produce it.
(Id.) In fact, Judge Goodman found, the software is critical evidence. (Id. at 6.)
Judge Goodman also found Montgomerys argument that Defendants waived their right
to have an expert test the software is circular and unconvincing. (Id. at 5.) The judge reasoned
that Defendants, who had identified the expert, could not provide an expert report because
Montgomery refused to provide the software which Defendants have been requesting since
discovery began. (Id.) The judge also found that the overall equities of the discovery dispute
and the [d]iscovery [o]rder at issue further militate against Montgomerys position because he
recently, and secretly, turned over the software to the FBI without keeping a copy, without
advising Defendants of his plan to do so, without advising this Court of his strategy and without
seeking leave of Court . . . . (Id. at 5-6.) Montgomerys purpose was to, in effect, seek to
sequester what could be the most important evidence in the entire case. (Id. at 6.)
H.
Montgomery Fails to Produce the Software by the September 4 Deadline
On September 4, Montgomery defied Judge Goodmans two orders by failing to produce

the software that day. Rather, Montgomery filed his objection. (ECF No. 125.)
I.
The September 8 Revelation of Montgomerys Document Dump on the FBI
On September 8, 2015, James Baker, the General Counsel of the FBI, wrote a letter to
Montgomerys counsel, and copied Judge Goodman and Defendants counsel, to correct any
misunderstandings about the conditions under which the FBI took possession of the materials
from Mr. Montgomery and to address the means by which Montgomery will be afforded
access to the materials he provided to the FBI. (ECF No. 126, at 1.)
Mr. Baker stated that, besides materials Montgomery gave to the FBI purportedly as a
whistleblower, Montgomery had other materials that were wholly irrelevant to the FBI inquiry
that may be on the drives such as the software at issue. (Id. at 2.) But Montgomery wished to
turn over every computer drive in his possession to the FBI. (Id.) Montgomery and the FBI
agreed to establish a procedure to provide Montgomery access to non-classified information if it

did not unduly burden the FBI. (Id.) But Montgomery did not associate the potential
retrieval of this information with any pending civil litigation. (Id.) Further complicating the
task, Montgomery told the FBI that Top Secret, compartmented information may reside
throughout the hard drives, leading the FBI to treat all Montgomerys 47 hard drives as
presumptively classified. (Id. at 2-3.) In stark contrast to Montgomerys counsels
representations to this Court, Montgomery never asked, and the FBI never agreed, for the
Government to undertake a classification review of [the] software at issue. (Id. at 3.)13
Mr. Baker also told Montgomery that the August 26 letter Montgomerys counsel sent to
the FBI was insufficient. [N]otably absent is any information which would assist the
Government in locating and producing the software at issue in Montgomery v. Risen. (ECF No.
126, at 3.) Mr. Baker explained that a letter Montgomery gave the FBI on August 19, 2015 said
that the hard drives contained 51.6 million files amounting to 600 million pages. (Id.)
Combined with Montgomerys claim to the FBI that classified information was contained
throughout the hard drives, this massive amount of information on the hard drives means
there is no reasonable way for the Government to locate and provide the alleged software,
absent specific instructions from Montgomery. (Id. at 3-4.)14
Montgomerys counsel and paralegal responded with self-serving declarations showing
they were present at the handover, but denying Mr. Bakers representations. (ECF No. 127.)
J.
The October 16 and 19 Orders Again Require Montgomery to Produce the

Software and to Provide the FBI Detailed Instructions to Find It
At a hearing on October 16 (Oct. 16 Hrg Tr., attached hereto as Exhibit 1), Judge
Goodman issued an order, followed by a written order on October 19. (ECF No. 164.) The
order again required Montgomery to produce his communications with the FBI about turning
13
Mr. Baker then offered a classification review if the government finds the software. (Id. at 4.)
Mr. Baker therefore asked Montgomery to provide the FBI: (1) the number or designation of
the drive on which the software is present; (2) the file name of the software; (3) the creation date
of the software; and (4) any other identifier(s) for the software. (Id. at 4.)
14
over the software, now by October 20. (Id. 2.)15 It required Montgomery to give the FBI
comprehensive instructions on how to locate the software within the hard drives he turned over
to the FBI or, if he cannot tell the FBI exactly how to identify the software, then he shall so
state in the email. (Id. 3.) Last, the order required him to produce the software by
October 26, 2015. (Id. 4.) The order permitted Defendants to file a motion for dismissal or
adverse inference sanctions if Montgomery failed to produce the software by October 26. (Id.)
In ruling, Judge Goodman again rejected Montgomerys argument that the software is not
relevant. Judge Goodman stated that Ive already noted that this particular software is, in fact,
critical evidence in the case, because this is a defamation case, and one of your main burdens as
the Plaintiff is to prove its your burden to prove the falsity of the allegation. (Oct. 16 Hrg Tr.
18:5-10, Ex. 1) (emphasis added). [Q]uite frankly, Judge Goodman said, it doesnt really
matter all that much whether Mr. Risen had access to this software or not. (Id. 18:11-13.)
The judge illustrated that fault and falsity are separate elements with a hypothetical. He
posited: Lets assume for the sake of discussion that [Risen] just wildly speculated that the
software didnt work. (Id. 18:14-15.) Under that hypothetical: Risen had never seen it, he
had never had access to it, he had never spoken to anybody about it; [h]e was just incredibly
reckless and wrote a book that said the software doesnt work. (Id. 18:15-18.) Even under this
counterfactual scenario, if it turns out that the software doesnt work, then its a true statement.
(Id. 18:18-20.) Thus, falsity is still part of [Plaintiffs] burden of proof. (Id. 18:20.)
K.
Montgomerys October 21 Declaration Now Swearing that He Did Not Have

Access to His Own Software and Did Not Give It to the FBI
On October 21, 2015, rather than comply with Judge Goodmans order to provide the FBI
sufficient instructions to find the software or state that he cannot do so, Montgomery filed a
declaration directly contradicting his own previous testimony under oath in his deposition, and
15
Although previously ordered, Montgomery did not produce the July 28 and August 12, 2015
letters referenced in Mr. Bakers September 8 letter or any response to Mr. Bakers request for
further information to locate the software until October 20, nor has he produced any other
documents indicating any other locations of his software.
9
his counsels representations in August to Judge Goodman. That day, Montgomery filed a
declaration, swearing under oath: 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 . . . .
(Pl.s Decl., ECF No. 158-1.) He does not explain how he supposedly does not have access to
his own software, where it is now located, or explain this change of story after Judge Goodman
made clear in the October 16 and 19 orders that he could face dismissal sanctions.16 Nor does he
explain whether he refers to the Al Jazeera software, the object recognition software, or video
compression software, all of which are the subject of the Chapter and the document request.
Shifting the burden to the FBI, he states: 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. (Id.)
L.
Montgomery Violates the Orders to Give the FBI Enough Detail by October
21 to Find the Software and to Produce the Software by October 26
On October 23, 2015, the FBI Assistant General Counsel, Ted Schwartz, emailed
Montgomerys counsel that Mr. Montgomery has now stated that he does not believe that the
subject software is on the hard drives. (Email from Ted Schwartz, Defs. Mem. in Supp. of
Sanctions Ex. 4, ECF No. 166-4.) Not surprisingly given that belief Mr. Montgomery has
not provided us the detailed information requested in the September 8, 2015 letter which would
allow us, without undue burden, to locate the software among the 51.6 million files which he
claims to have provided us. (Id.) Mr. Schwartz repeated that the FBI would not conduct a
classification review. (Id.) Mr. Schwartz concluded that, the FBI will not search the drives to
16
Tellingly, Mr. Klayman told the Court he knew from day one Defendants would move to
dismiss the case if the software the crucial evidence was not produced, yet inexplicably took
no steps to ensure that the software exists or to preserve a copy of the software. (Oct. 16 Hrg
Tr. 17:21-18:2, Ex. 1) ([M]aybe we can get the magistrate judge and/or the judge to rule that the
case should be dismissed if you dont turn over something that we never even had anyway when
we wrote the book or relied on. See, and its clever, I predicted this to my colleagues from day
one, that Defendants would try this, okay, and this obviously has come to be true.).
10
locate software requested in the Risen litigation. (Id.) (emphasis added).17

M.
Montgomerys Objections and Defendants Motion for Sanctions
On October 26, 2015, Montgomery did not produce the software. He filed his Objection
and request for a stay. (ECF No. 164.) In it, he represents, notwithstanding Mr. Schwartzs
email to the contrary, that [t]he 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. (Id. at 6.) He again argues that software is not relevant, suggests that he now lacks
possession, custody, or control over the software, and that Defendants inability to provide a full
expert report somehow justifies overturning the Discovery Order.
Montgomery also asserts that he turned over the massive data dump to the FBI, which,
until recently, he stated included the software, because he purports to be a whistleblower about
illegal and unconstitutional surveillance on Americans. (Pl.s Obj. at 2-3.) Similarly,
Montgomery turned over a massive data dump of about 45 hard drives to the Maricopa County
Sheriffs Office (MSCO) that also allegedly contained evidence of government operations
involving clandestine access to, and collection of, raw data . . . belonging to American users.
(See Certification from J. Kirke Wiebe and Thomas A. Drake, at 1, Nov. 13, 2014, attached
hereto as Exhibit 2.) Two former NSA experts MSCO hired to analyze the data found that none
of the data examined reveals or otherwise supports the assertion the data contained on the hard
drives examined resulted from the clandestine collection and processing of modern digital
communications and is instead, evidence of an outright and fraudulent con perpetuated on the
government for personal gain and cover. (See id. at 2) (emphasis added). (See also Oct. 16
Hrg Tr. 23:15-24:24, Ex. 1.)18 Montgomery appears not to be a whistleblower at all. Instead,
17
Plaintiffs counsel responded to Mr. Schwartz by letter later that night, copying Judge Royce
Lamberth (D.D.C.), offering to provide information if that is required, but my client believes he
has given what it needs to pinpoint any software, if it exists, on the 47 hard drives, which
General Counsel Baker noted in his September 8, 2015, letter containing 51.6 million files
amounting to 600 million pages. (Letter from Mr. Klayman, Defs. Mem. in Supp. of
Sanctions Ex. 5, ECF No. 166-5.)
18
Montgomerys counsel here is also representing the same NSA experts in their own
whistleblower suit, making it awkward in the extreme for Montgomerys counsel to deny or
11
he is using this data dump to the FBI to hide the software, to hide his lack of knowledge about its
whereabouts, or to delay producing it so Defendants cannot get it in time to defend themselves.
On October 28, 2015, as the Discovery Order authorized, Defendants filed their motion
for dismissal sanctions on grounds that Montgomery spoliated the software by giving it to the
FBI and violated multiple court orders to produce the software. (ECF No. 182.) This sanctions
motion is now properly before Judge Goodman for a Report and Recommendation to this Court.
III.
A.
ARGUMENT
The Court Should Overrule Plaintiffs Objection Because the Discovery

Order Is Not Cleary Erroneous or Contrary to Law
Montgomery does not meet the onerous standard to overturn a magistrate judges nondispositive order. A district judge in the case must consider timely objections and modify or set
aside any part of the order that is clearly erroneous or is contrary to law. Fed. R. Civ. P. 72(a);
accord 28 U.S.C. 636(b)(1)(A) (A judge of the court may reconsider any pretrial matter . . .
where it has been shown that the magistrate judges order is clearly erroneous or contrary to
law.); S.D. Fla. Magistrate Judge R. 4(a)(1) (same).
A magistrate judges ruling is clearly erroneous only when the district court is left
with the definite and firm conviction that a mistake has been committed. Salazar v. Wells
Fargo Bank, N.A., 2011 WL 379145, at *3 (S.D. Fla. Feb. 2, 2011). Clear error is a highly
deferential standard of review. Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350
(11th Cir. 2005). The district court may not undo the magistrate judges non-dispositive order
simply because it is convinced that it would have decided the case differently. Manno v.
Healthcare Revenue Recovery Grp., LLC, 2012 WL 4192987, at *2 (S.D. Fla. Sept. 18, 2012)
(quoting Holton, 425 F.3d at 1351). An order is contrary to law when it fails to apply or
misapplies relevant statutes, case law or rules of procedure. Summit Towers Condo. Assn v.
otherwise contradict their finding that Montgomery perpetuated an outright and fraudulent
con. (See Compl., Drake v. Alexander, No. 1:15-cv-01353-RJL, ECF No. 1 (D.D.C. filed Aug.
20, 2015).) Their report referenced that the hard drives contained a number of Al Jazeera
broadcasts, just as discussed in the Chapter at issue here.
12
QBE Ins. Corp., 2012 WL 1440894, at *1 (S.D. Fla. Apr. 4, 2012) (citation omitted).
This standard is a very difficult one to meet. Manno, 2012 WL 4192987, at *2
(citation omitted); accord Tai-Pan, Inc. v. Keith Marine, Inc., 1997 WL 714898, at *11 (M.D.
Fla. May 13, 1997) (The standard for overturning a Magistrate [Judges] Order is a very
difficult one to meet.). Montgomerys Objection does not meet this standard of review.
B.
Judge Goodmans Finding that the Software Is Highly Relevant to the

Element of Falsity Is Not Clearly Erroneous or Contrary to Law
Montgomery argues that the software at issue is not even relevant because Risens
book was based on previously published articles by Bloomberg News and Playboy and nonclassified public court and congressional records. (Pl.s Obj. at 7.) Put differently, he argues
that, because Risen did not have access to the software when he wrote the Chapter and
Defendants moved to dismiss under the fair report privilege and for failure to plausibly allege
fault based on the prior articles and official records Risen had relied upon, the software is
irrelevant at summary judgment and trial.19 (Id. at 7-10.) For two main reasons, the Court
should overrule this Objection.
First, the Objection merely rehashes the same arguments that Montgomery made before
Judge Goodman. But he does not show or even attempt to show how Judge Goodmans
ruling finding the software is highly relevant and requiring Montgomery to produce the software
at heart of his case is clearly erroneous or is contrary to law. Montgomerys failure to do so
precludes this Court from modifying or setting aside Judge Goodmans ruling, as court after
court faced with similar objections has ruled. See, e.g., Edmonds v. Seavey, 2009 WL 2150971,
at *3 (S.D.N.Y. July 20, 2009) (Plaintiffs objections merely repeat the same arguments put
before Judge Francis as to why Defendants sanctions motion should not have been granted in
the first instance; they do not, however, reveal anything clearly erroneous about Judge Franciss
factual findings, or any misapplication of the relevant law to those findings.); Matos v.
19
Contrary to Montgomerys representation, Defendants never said that the software is not
necessary to try[] this case before a jury. (Pl.s Obj. at 9.)
13
Wojnarowicz, 2008 WL 892365, at *2 (E.D.N.Y. Apr. 2, 2008) (Defendants objections to the

[order] merely repeat the arguments made to [the] Magistrate Judge . . . and do not establish that
the [order] is clearly erroneous or contrary to law. . . .); United States v. Ionia Mgmt. S.A., 499
F. Supp. 2d 166, 168 (D. Conn. 2007) (In its Objection, Ionia rehashes the arguments it offered
to [the] Magistrate Judge . . . concerning unavailability, but does not offer any new information
or legal authority demonstrating that her conclusion was clearly erroneous or contrary to law.).
Second, Judge Goodmans ruling is plainly correct. Risens reliance on these prior
publications and official records is relevant to the element of fault and the fair report privilege
defense, issues raised on Defendants motion to dismiss, while the software is wholly relevant to
the element of falsity, an issue not raised on the Rule 12(b)(6) motion. (Defs. Mot. to Dismiss
or Transfer, at 27-29, 31-39.) A fundamental element of a claim for defamation, of course, is a
false and defamatory statement concerning another. Restatement (Second) of Torts 558 (June
2015) (emphasis added). If the statements or implications that Montgomerys software did not
work are not false, then he will not be able to prove his defamation claim, without regard to fault.
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986) (holding under the First
Amendment that plaintiff bears the burden to prove falsity in libel actions in cases against the
media involving matters of public concern).
Here, the Objection is meritless because it ignores the basis for the Judge Goodmans
ruling that Ive already noted that this particular software is, in fact, critical evidence in the
case, because this is a defamation case, and one of the main burdens as the Plaintiff is to prove
its your burden to prove the falsity of the allegation. (Oct. 16 Hrg Tr. 18:5-10, Ex. 1)
(emphasis added). On August 21, the judge had already found that the software is highly
relevant to the element of substantial falsity of the claim in the book that the software did not
work. (Aug. 21 Hrg Tr. 18:5-10; 32:23-24, ECF No. 111-1). Contrary to Montgomerys
unsupported assertion (Pl.s Obj. at 9), the judge correctly found that the falsity does not depend
on whether Risen had a copy of the software at the time, but whether, in fact, the software works
or not. (Oct. 16 Hrg Tr. 18:11-13, Ex. 1; Aug. 21 Hrg Tr. 24:1-20, ECF No. 111-1.)
14
It is well-established that it makes no difference [if] the true facts were unknown at the
time of publication, because truthnot just known truthis a complete defense to defamation.
Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993) (Posner, J.) (internal citations
omitted); Restatement (Second) of Torts 581A cmt. h (1977) ([I]f the defamatory matter is
true . . . it is enough that it turns out to be true.). Montgomery would have this Court bless his
attempts to sequester what could be the most important evidence of truth. (Stay Order, ECF
No. 122, at 5.) But he does not have a legally protected right to a reputation based on the
concealment of the truth. Haynes, 8 F.3d at 1228. Rather, as Judge Goodman stated, the
software is highly relevant, and indeed, critical to truth and falsity. (Oct. 16 Hrg Tr. 18:510, Ex. 1; Aug. 21 Hrg Tr. 32:23-24, ECF No. 111-1; Stay Order, ECF No. 122, at 6.)20 Thus,
Montgomery fails to show that the Magistrate Judge, in the exercise of his broad discretion, was
clearly erroneous in concluding that the software is relevant to the element of falsity and must
be produced. SEC v. Merkin, 283 F.R.D. 689, 700 (S.D. Fla. 2012).21
C.
Montgomerys Belated, Implausible Argument that He Does Not Have

Possession, Custody, or Control of His Own Software Does Not Justify
Overturning the Discovery Order
Next, Montgomery objects to the order because he asserts he will be unable to provide
the software at issue, if any, by October 26, 2015. (Pl.s Obj. at 5.) Montgomery suggests, but
does not state unequivocally, that the Court should overrule the objection because the software is
now somehow not in his possession, custody, or control. The Court should reject this argument.
First, Montgomery waived any objection that he lacked possession, custody, or control
over the software. See Henderson v. Zurn Indus., Inc., 131 F.R.D. 560, 568 (S.D. Ind. 1990)
(holding that, by virtue of the defendants waiver of the objection, the Court holds that the
control or possession requirements of Rule 34 have been met.); 8B Charles A. Wright,
20
Montgomery cites the CIAs objection to Defendants Touhy request for the software and other
information from the CIA for this relevancy argument. (Pl.s Obj. at 12.) But for the same
reasons explained above, the CIAs counsel is also incorrect about the law.
21
Nor has Montgomery provided a basis to conclude that the Discovery Orders requirement to
produce documents on the location of the software, including documents related to the secret,
unauthorized hand-over to the FBI of the only copy of the software, is clearly erroneous.
15
Arthur R. Miller, Richard R. Marcus, Federal Practice and Procedure, 2210, at 164 (3d ed.
2010) ([L]ack of control may be considered an objection to the discovery request and, like any
such objection, may be waived.). Here, Montgomery did not object on this basis in his July 1 or
July 15 response and objections to Defendants discovery requests, nor before Judge Goodman
granted Defendants two motions to compel production of the software on August 22 and
October 19, nor before Judge Goodman authorized Defendants to move for serious sanctions if
Montgomery did not comply. See Woods v. Cook Cnty., 2014 WL 7261277, at *2 (N.D. Ill. Dec.
19, 2014) (finding waiver when defendants did not object that they lacked control over the
requested documents until . . . eight months after their responses were due and after the court
granted Woodss first motion to compel); Henderson, 131 F.R.D. at 568 (finding waiver where
party did not include possession or control objection in responses and objections). By waiting
until October 21 to first raise this issue in his affidavit, he waived this objection.
Second, even if the Court were to consider Montgomerys belated suggestion that he
lacks possession, custody, or control, the Court should reject it. To begin, he states that
Plaintiff is not in possession of the software at issue and is not even sure if the documents and
other things provided to the FBI contain the software. (Pl.s Obj. at 6.) But he does not state
that he lacks control over his own software. And his own cases acknowledge that [c]ontrol is
defined not only as possession, but as the legal right to obtain the documents requested upon
demand, Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984), or when that party has the
right, authority, or practical ability to obtain the documents . . . . Bank of New York v. Meridien
BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 146 (S.D.N.Y. 1997); (See Pl.s Obj. at 6).
Moreover, contrary to Montgomerys arguments, his actions do not show good faith.
(Pl.s Obj. at 6-7.) Montgomerys failure to preserve and produce the software that is critical to
the falsity element of his claim based on changing, legally insufficient stories in the face of
Defendants repeated requests and court orders is evidence of bad faith or willfulness.22 There
22
See Flury v. Daimler Chrysler Corp., 427 F.3d 939, 947 (11th Cir. 2005) (instructing trial
court dismiss as sanction for bad faith spoliation when, six years before action, plaintiff allowed
16
is no reason why Montgomery could not keep a copy of his software when, as he testified under
oath and his counsel confirmed, he gave the FBI his only copy nearly three months after
Defendants requested it in discovery and a few days before the parties held a discovery hearing
before Judge Goodman about production of the software. He does not explain why he could not
provide the FBI sufficiently detailed instructions to find the software in the massive document
dump he foisted upon the FBI in the midst of this discovery dispute. Then, after Judge Goodman
warned him that Defendants could move for sanctions, including dismissal, if he did not comply
by October 26, 2015, Montgomery contradicted his sworn testimony and his counsels
representations and said he now believe[d] he did not have access to his own software and
did not provide the software to the FBI.23 Finally, Montgomery misrepresented to Judge
Goodman that [t]he FBI is . . . search[ing] through the millions of files in order to determine
whether such software does exist in the documents provided by Plaintiff, when the FBIs
October 23 correspondence states that they are not doing so. (Pl.s Obj. at 6.) This egregious
his insurer to destroy vehicle central to his claims despite defendants pending request to inspect
vehicle); Gonzalez v. Business Representation Intl, Inc., 248 F.R.D. 644 (S.D. Fla. 2008)
(finding bad faith when plaintiff made false statements, and obstructed access to highly relevant
evidence by revoking medical authorization); Telectron, Inc. v. Overhead Door Corp., 116
F.R.D. 107, 131-36 (S.D. Fla. 1987) (entering default judgment under inherent powers and Rule
37 for destroying relevant documents after party served with complaint and requests for
production, and flagrant dishonesty); PSG Poker, LLC v. DeRosa-Grund, 2008 WL 190055, at
*12 (S.D.N.Y. Jan. 22, 2008) ([F]ailure to either produce relevant documents or a credible story
regarding their whereabouts despite the admonitions of this Court and repeated requests from
the plaintiffs can only be interpreted as an intentional and willful act).
23
If Montgomerys latest declaration under oath is true that he did not have access to the
software or give it to the FBI in August then he and his counsel lied to Judge Goodman and led
Defendants, Judge Goodman, and the FBI on a wild goose chase. These facts give rise to the
strong inference that: (1) he does not have access to the software because he spoliated it; (2) he
violated Fed. R. Civ. P. 11(b)(3) by bringing this suit when he knew he could not prove falsity, a
critical element of any libel claim; (3) he never had access to the software or it never existed,
thus explaining his refusal to turn it over in the Nevada litigation and his bankruptcy case; or (4)
he knows the software does not work and never worked, and thus he dare not expose it to
scrutiny. Under any of these circumstances, the objections to the Discovery Order should be
rejected and Defendants are entitled to dismissal sanctions, as urged in the pending motion
before Judge Goodman, because Montgomery cannot prove falsity, he acted in bad faith, and he
caused severe prejudice to the Defendants.
17
conduct sustain[s] an inference of consciousness of a weak case the very definition of bad
faith. Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (citation omitted).
Montgomerys cases are not only distinguishable, they support Defendants. In Searock v.
Stripling, the Eleventh Circuit held that a plaintiff was not required to produce documents that,
unlike here, were not his own but that he had volunteered to obtain from a third party and where,
unlike here, defendant had failed to take any action to attempt to secure these crucial documents
itself. 736 F.2d at 653-54. Moreover, unlike here, [t]here [was] no evidence that [the party]
acted willfully, in bad faith or was at fault in failing to produce the documents . . . . Id. at 654.
Montgomerys other cases do not help him either. Unlike here, there was no evidence of bad
faith, and the party stated that the documents were not in its possession, custody, or control
unequivocally, from the very beginning, and with a logical explanation.24
D.
Montgomery Provides No Basis Why Defendants Inability to Provide a Full

Expert Report Due to His Own Refusal to Produce the Software Could
Justify Overturning the Discovery Order
Montgomery argues that Defendants somehow waived their right to have an expert test
the software and testify and that purported waiver somehow justifies overturning the Discovery
Order. (Pl.s Obj. at 10-11.) But Montgomery does not provide the basis for this suggestion, and
in any event, his argument is circular and unconvincing. (Stay Order, ECF No. 122, at 5.) As
Judge Goodman correctly found, Defendants identified the expert by the deadline on August 3,
but Defendants could not provide an expert report because Montgomery refused to provide the
software which Defendants have been requesting since discovery began. (Id.) Thus, the expert
had nothing to test, and no opinions to offer or support with information about his qualifications
without the software that Montgomery had failed to produce. Montgomery did not object and
has failed to identify a rebuttal expert by the deadline of August 24.25
24
Thermoset Corp. v. Bldg. Materials Corp. of Am., 2014 WL 6473232, at *4 (S.D. Fla. Nov. 18,
2014); Bank of New York, 171 F.R.D. at 152.
25
Defendants served a partial report with the experts qualifications on Montgomery on
September 3, after becoming aware through his motion to stay that he wanted it. Any claimed
error is thus harmless. Iacangelo v. Georgetown Univ., 272 F.R.D. 233, 234 (D.D.C. 2011).
18
For Montgomery to suggest that Defendants expert should be excluded (Pl.s Obj. at 11)
is the ultimate in chutzpah, particularly when the software was unavailable only because of
Montgomerys unilateral decision to recently and secretly turn [ ] over the software to the FBI
without keeping a copy, without advising Defendants of his plan to do so, without advising this
Court of his strategy, and without seeking leave of Court . . . . (Stay Order, ECF No. 122, at 6.)
E.
The Court Should Deny Plaintiffs Request for a Stay
The Court should deny a stay because Montgomery does not put forth any argument or
cite any authority to support his request for a staying pending the Objection. To obtain a stay of
a magistrate judges discovery order on appeal to the district court, Montgomery must show: (1)
likelihood of success on the merits of the appeal; (2) irreparable injury to Plaintiff absent a stay;
(3) lack of substantial prejudice to Defendants; and (4) the stay would serve the public interest.
Ameritox, Ltd. v. Millennium Labs., Inc., 2015 WL 1169403, at *2 (M.D. Fla. Mar. 13, 2015).
As explained above, Montgomery is not likely to succeed on his Objection. He has
shown no irreparable injury to himself absent a stay. Moreover, his request that [d]iscovery
could be extended for a month or two to produce software while leav[ing] the trial date in
place (Pl.s Obj. at 12) would severely prejudice Defendants by leaving inadequate time to brief
and decide summary judgment motions, to test the software, and to prepare for any trial. Indeed,
it was Montgomery who insisted on an expedited schedule due to his poor health26 and now has
made sure, by not even securing a copy of his own software, that the critical evidence will not be
available on a timely basis if ever. He has deliberately blown past the reasonable deadlines set
by Judge Goodman. The Court should not allow him to change course and obtain new deadlines
that will prejudice Defendants and reward his deliberate strategy to sequester what could be the
most important evidence in the case. (Stay Order, ECF No. 122 at 6.)
26
Other than evidence of a fall that did not require an overnight stay in the hospital, Montgomery
has not produced any medical records that support his statement in his Objection that he
recently suffered another severe, life-threatening medical setback related to his potentially fatal
brain aneurism and may need another operation. (Pl.s Obj. at 2.)
19
IV.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court overrule
Plaintiffs Objection to the October 19, 2015 Discovery Order and deny Plaintiff a stay.
Dated: November 12, 2015
Respectfully submitted,
s/Brian W. Toth
Sanford L. Bohrer
Florida Bar No. 160643
sbohrer@hklaw.com
Brian W. Toth
Florida Bar No. 57708
brian.toth@hklaw.com
HOLLAND & KNIGHT LLP
Miami, Florida 33131
Telephone: (305) 374-8500
Fax: (305) 789-7799
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 November 12, 2015, I filed this document with the Clerk of Court using
CM/ECF, which will serve this document on all counsel of record.
s/Brian W. Toth
20
Case 1:15-cv-20782-JEM Document 176-1 Entered on FLSD Docket 11/12/2015 Page 1 of 53
EXHIBIT 1
1 53
Case 1:15-cv-20782-JEM Document 176-1 Entered on FLSD Docket 11/12/2015 Page 2 of
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
2
Case No. 15-20782-CIV-MARRA
3
DENNIS L. MONTGOMERY,
4
5
6
7
8
)
)
PLAINTIFF,
)
)
-v)
)
JAMES RISEN, ET AL.,
)
)
DEFENDANTS.
)
)
_____________________________)
)
Miami, Florida
October 16, 2015
9
10
TRANSCRIPT OF DISCOVERY HEARING PROCEEDINGS
11
BEFORE THE HONORABLE JONATHAN GOODMAN
12
UNITED STATES MAGISTRATE JUDGE
13
14
Appearances:
15
(On Page 2.)
16
Reporter
(561)514-3768
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18
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21
22
23
24
25
Stephen W. Franklin, RMR, CRR, CPE

Official Court Reporter
701 Clematis Street
West Palm Beach, Florida 33401
E-mail: SFranklinUSDC@aol.com
2 53
* * * * *
2
3
FOR THE PLAINTIFF

(By Telephone)
Larry E. Klayman, ESQ.

Klayman Law Firm
2520 Coral Way, Suite 2027
Miami, FL 33145
FOR THE DEFENDANTS

(By Telephone)
Laura R. Handman, ESQ., AND

Micah J. Ratner, ESQ.
Davis, Wright & Tremaine
1919 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20006
4
5
6
7
8
9
10
-and(Present in Court)
Sanford L. Bohrer, ESQ.

Holland & Knight
Miami, FL 33131
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12
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15
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18
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21
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* * * * *
3 53
(Call to the order of the Court.)
2
3
THE COURTROOM DEPUTY:
Calling case
15-20782-CIVIL-MARTINEZ, Montgomery versus Risen, et al.
The Honorable Jonathan Goodman presiding.
THE COURT:
I'm hoping that the beeping noise that I just heard
indicates that we now have an additional counsel on the line,
and, if so, I think we've got everybody here.
9
10
Good afternoon, folks.
So you haven't missed anything.
We're just starting
now.
11
So let's start off with appearances.
12
First for the Plaintiff, I believe we have hopefully
13
counsel on the phone?
14
15
MR. KLAYMAN:
Yes, we do, Your Honor.
Larry
Klayman.
16
How are you today?
17
THE COURT:
18
Mr. Klayman, by the way, were you on television last
All right.
Good.
19
night on the Jimmy Kimmel show?
20
MR. KLAYMAN:
21
THE COURT:
22
there on the street.
23
on-the-street surprise ambush interviews, and there was a
24
fellow interviewed who looked significantly like you and had a
25
similar demeanor and a similar way of speaking, and I said, my
No, I don't think so, but --
There's a fellow who was interviewed

Jimmy Kimmel sometimes has one of these
4 53
gosh, is Mr. Klayman out there on Sunset Boulevard, in
Hollywood?
But apparently not.
All right.
MR. KLAYMAN:
I think it may have been me, Your
Honor.
interview to them a while back.
THE COURT:
MR. KLAYMAN:
THE COURT:
I actually was -- it may have been me.
11
THE COURT:
12
MR. KLAYMAN:
13
THE COURT:
the dog being like your wife or something, right?
16
THE COURT:
No, it's like my daughter.
Oh, my gosh, I was correct, that was
you.
18
MR. KLAYMAN:
I don't know.
Maybe I said if I had
had my dog I never would have gotten married.
20
22
Yes, that's me.
And, in fact, there was a reference to
MR. KLAYMAN:
21
Was there a dog on there?
Yes, you were holding a dog.
15
19
Yeah.
Oh.
MR. KLAYMAN:
17
I guess they held it.
Oh, really?
10
14
I did give an
THE COURT:
Maybe I --
There was some reference to a dog and a
wife.
So, yeah, I guess they do these interviews and they
23
hold them for, I don't know, weeks at a time, whenever they
24
have a need.
25
It wasn't particularly time sensitive.
MR. KLAYMAN:
They held it for months, months.
5 53
THE COURT:
Okay.
Who else do you have on the phone?
MS. HANDMAN:
My gosh.
Good.
You have Laura Handman and Micha
Ratner, from DC.
6
7
It was you, Mr. Klayman.
THE COURT:
All right.
Either of you on television
lately?
MS. HANDMAN:
THE COURT:
10
MR. BOHRER:
11
THE COURT:
Very well.
12
All right.
So happy Friday to everyone.
13
We're here for a discovery dispute, and I understand
No.
All right.
And here in court we have?
Sandy Bohrer, Your Honor.
14
this is a matter that the defense would like to bring to my
15
attention.
So I'm happy to hear what you have to say.
16
MS. HANDMAN:
17
We're here again today for sanctions for failure to
Thank you, Your Honor.
18
comply with paragraph 5 and 6 of the Court's post-hearing
19
discovery order of August 22nd.
20
37(b) and (e).
We seek sanctions under Rule
21
Your Honor will recall, the revelations made at the
22
August 21st hearing which Your Honor described in your denial
23
of the stay of the August 22nd order, that Montgomery, quote,
24
"recently and secretly turned over the software to the FBI
25
without keeping a copy, without advising Defendants of his
6 53
plan to do so, without advising this Court of his strategy,
and without seeking leave of court to, in effect, sequester
what could be the most important evidence in the entire case."
The Court ordered on August 22nd, in paragraph 6,
that by September 4, Plaintiff use, quote, "his self-described
right of continued access to nonclassified information,"
paren, "in relation to his turning over the subject software
to the FBI, to produce the software to defendants."
9
10
11
12
That was by September 4.

Plaintiff's counsel wrote to the FBI and AUSA Curtis
on August 26th quoting and attaching the order.
Then on September 8th, the FBI's general counsel
13
wrote back to Plaintiff's counsel, with a copy to Your Honor
14
and to Defendants' counsel.
15
Government was not aware of this case and the pending document
16
demand when they received the information, but, most
17
importantly, he said:
18
any information which would assist the Government in locating
19
and producing the software at issue in Montgomery v. Risen."
20
Not only did Mr. Baker say the
"Notably absent" -- I'm quoting -- "is
And then why?
Because what Plaintiffs gave the FBI
21
on August 19th, just two days before the hearing before Your
22
Honor on the software, was hard drives containing, according
23
to Mr. Baker, 51.6 million files amounting to 600 million
24
pages, which the Plaintiff claims had classified information
25
throughout.
7 53
Hence, Mr. Baker said, quote:
"This massive amount
of information means there is no reasonable way for the
Government to locate and provide the alleged software absent
specific instructions from the Plaintiff.
Mr. Baker then specified what was needed.
One was a
number or designation of the drive on which the software is
present.
creation date of the software.
the software.
10
Two, the file name of the software.
Three, the
Four, any other identifiers of
So we asked Mr. Klayman on September 21st whether
11
Plaintiff had provided that information requested, and to
12
please provide us the communications evidencing same, as well
13
as the prior communications referenced in Mr. Baker's letter,
14
all of which this Court ordered to be produced in paragraph 5
15
of the August 22nd order.
16
We did not get the software, which was supposed to
17
be produced by September 4, nor any evidence that the
18
information requested by the FBI in order to locate the
19
software have been provided, nor any communications with the
20
FBI.
21
And in the absence of any such communications
22
confirmation, I communicated on October 5 with Ted Schwartz,
23
the assistant -- the FBI's assistant general counsel, and he
24
advised that Mr. Klayman had sent an e-mail on September 24 --
25
that would be after our meet and confer -- to which the FBI
8 53
responded on October 1st, quote, "asking for more information
and clarification."
Mr. Schwartz said he could not provide the documents
absent a formal subpoena subject to the Touhy regulations but
said, quote, the FBI has no objection to Mr. Klayman providing
us a copy of the e-mail exchange.
So we asked Plaintiff's counsel, again as part of
the meet and confer on October 7th, for this exchange, and
advised them that the FBI had no objections.
We asked again
10
for the prior communications and confirmation that the
11
information necessary to locate the software had been
12
provided, and for the software itself.
13
We have gotten no response, no documents, no
14
software, even though clearly required by this Court's order
15
of August 22.
16
By giving the FBI this one and only copy of his own
17
software and not keeping a copy which had been the subject of
18
the specific discovery request since June 1, and which is, as
19
Your Honor observed, the critical evidence in the case, and
20
providing it to the FBI in a massive document dump that makes
21
it difficult, if not impossible, to retrieve, Plaintiff has
22
engaged, in our view, in deliberate spoliation, in defiance of
23
this Court's order to retrieve the software and provide the
24
communications with the FBI.
25
We were able to get, as Your Honor probably knows, a
9 of
Case 1:15-cv-20782-JEM Document 176-1 Entered on FLSD Docket 11/12/2015 Page 10
53
1
brief extension of the discovery deadline, but it is now fast
approaching.
expert to examine the software and test whether it works or
not and do follow-up discovery.
It's one month away, and we need time for our
So we respectfully request that the Court order
Plaintiff to, one, produce by Monday all communications
regarding the location of Montgomery software, which is what
Your Honor ordered on August 22nd in the paragraph 5,
including, but not limited to, the July 28 letter agreement
10
with the FBI, the August 1 e-mail that are both referenced in
11
Mr. Baker's letter, the September 24 e-mail from Mr. Klayman,
12
and the FBI's October 1 response, which Mr. Schwartz advised
13
of, and any subsequent communications with the FBI.
14
We'd also ask Your Honor to order that if he has not
15
already done so, by Monday, he provide the FBI with all the
16
information the FBI has required in order to identify and
17
locate the software and provide documentation that that has
18
been done.
19
20
21
And, finally, we'd ask that they provide the

software by October 26.
We ask that if these requirements are not satisfied,
22
including provision of the software, even if the FBI has not
23
been able to return the software to the Plaintiff by that
24
time, due to Plaintiff's deliberate decision to not keep a
25
copy of its own software, but instead provide it to the FBI in

11 of
53
a manner that did not permit timely retrieval and production,
and causing extreme prejudice to Defendants' ability to defend
this case, we ask the Court to impose sanctions as provided
under Rule 37.
First, we would ask to dismiss the action with
prejudice.
make a finding that the software either did not exist, or did
not work, or, at a minimum, draw an adverse inference that the
software did not exist or did not work.
10
And if not dismissed, we would ask the Court to
We cited some authority in Footnote 17 in our
11
prehearing memorandum of August 4th, but we would be happy to
12
supplement that with additional authority if the Court
13
requires.
14
THE COURT:
15
Mr. Klayman?
16
MR. KLAYMAN:
17
First of all, I would say that we did comply with
Thank you.
Yes, Your Honor.
18
your order of August 22nd, 2015.
19
FBI on notice by August 26th that to look for the software, if
20
it existed.
21
drives, 600 million pages of documentation provided to the
22
FBI, that, in fact, software existed on that.
23
You ordered that we put the
We did not know whether or not, of the 47 hard
Secondly, the FBI advised in the letter from
24
Mr. Baker of September 8th that they were conducting, or they
25
would conduct a classification review.
Because we said if it

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53
does exist it may be classified, and that's why we just
couldn't turn any software, even if it existed, over
willy-nilly.
Mr. Montgomery, but also for Defendants.
receive classified information, they could be in great legal
difficulty.
That would create liability, and not just for

If they were to
Now, that having been said, we have --
Mr. Montgomery has communicated with the FBI and has given it
information whereby it could make a concerted effort to find
10
that software to the best of his ability, if it exists.
11
However, this is an ongoing criminal investigation by the FBI,
12
and the information that's being provided to the FBI in terms
13
of it trying to be able to locate if any such software exists
14
and if it's classified, would be subject to work product in
15
the context of that criminal investigation.
16
We did get correspondence from Mr. Schwartz, but it
17
was never copied on Ms. Handman.
18
that.
19
vest as part of the criminal investigation.
20
prosecutor for the Justice Department, I have to respect the
21
investigatory privilege of the FBI, particularly when a
22
criminal matter is involved.
23
I don't know how she has
So I assume that the FBI was keeping this close to the

As a former
And, in fact, contrary to what was said in
24
Mr. Baker's letter, he's a very honest man, and I have the
25
highest regard for him, but he was not privy at the meeting at

13 of
53
the Miami field office of the FBI.
was.
An Assistant U.S. Attorney
So the information was provided second hand.

We filed affidavits on the record, both myself and
Ms. James, who was present, Dina James, paralegal, that, in
fact, we had told the FBI that there was a civil matter, and
that, for that reason, we would need access if required by
this Court to anything revolving around if software existed or
any other matter.
point in time.
10
11
said.
And the FBI and the AUSA agreed at that
That was not put in writing, but that was
But we did put it in an affidavit.

So we have been completely forthright in making an
12
attempt to find out if any software is there.
13
conducting a classification review.
14
important.
15
in the news these days that the FBI has some very significant
16
matters concerning a person called Hillary Clinton.
17
know, obviously their resources are being stretched thin.
18
The FBI is
These things are very
And we know, you know, in other matters that are
And, you
I mean, the documents here are 600 million pages.
19
That's huge in comparison to the 35,000 pages which went
20
missing in that very high profile case.
21
which they're moving with all due speed, and we are proceeding
22
in that regard.
23
So this is a matter
Now, I don't know if Your Honor had the
24
opportunity -- I assume you did, because you're a very
25
diligent jurist -- to look at our objection to your order, in

14 of
53
all due respect.
your way to require this to be produced without any basis.
But what we're saying is, and we're asking Judge Martinez to
take a look at it, and I hope that you can look at it, too, is
that, you know, it's ironic that they're making this issue of
the software, and it's strategic.
And we're not saying that you went out of
And I predicted that this was going to happen at an
early hearing, because their initial motion to dismiss was
based on the premise that everything that was published by
10
Mr. Risen came from prior publications in Playboy Magazine, in
11
Bloomberg News, and in Congressional testimony on the public
12
record.
13
inside the Government, contrary to a source note in his book,
14
which was meant to sell the book but was obviously false given
15
his testimony.
16
that he didn't have access to any software or confidential
17
information from the Government.
And Mr. Risen never relied on confidential sources
And he confirmed that when he was deposed,
18
And we put that in that objection.
19
So this is a red herring, and Ms. Handman has just
20
now confirmed that this is true, that they were trying -- they
21
were trying to create a Catch 22 with regard to the software
22
to try to get this case dismissed.
23
And the other thing that supports that is the fact
24
that on the last day, for them to have designated an expert to
25
review any such software -- which they could have done from

15 of
53
the start -- they didn't even give us anything more than the
name of the expert, in violation of federal rules on producing
information with regard to experts.
qualifications, prior testimony and everything like that.
You know, their prior
So the bottom line here, Your Honor, is -- and I
don't want to get too diverted, but the background's
important -- is that we should be allowed to have this
objection run its course.
Honor didn't -- not have all this information at the time that
It's a legitimate objection.
Your
10
Your Honor ruled initially.
11
turn software, which we don't know whether it exists or not,
12
over now, and the FBI's looking for it, and it's classified,
13
and communications over what's in those discs would moot out
14
the objection, could potentially expose classified
15
information, which would be helpful even to foreign interests
16
adverse to the United States, it would compromise an ongoing
17
criminal investigation by the FBI -- the communications are
18
technically work product here, because Mr. Montgomery is, in
19
fact, a witness for the FBI.
20
and that's why he got that immunity letter.
21
We took time to plot it out.
To
He's an informant for the FBI,
And for all of these reasons, Your Honor, we have
22
been in good faith, we respect you highly, we respect your
23
orders, but to turn over internal communications would
24
compromise a criminal investigation and possibly classified
25
information and could result in national security damage to

16 of
53
this country.
So that's our stance right now.
Let the FBI run its course.
It's moving --
Mr. Montgomery has participated in helping them, despite the
fact that he went back into the hospital after another stroke.
And let's see what the FBI comes up with.
moving with all due speed.
we have an extension on discovery.
yet.
10
11
I know they're
I don't think it's necessary that

It hasn't been requested
But if that's necessary, and Your Honor so rules and the
Judge so rules, then that's something we would respect.

But, again, they're not basing their case on any
12
software or classified information, you just need to look into
13
their motion to dismiss to tell you dismiss this case because
14
it all came from public sources.
15
So we respectfully request, Your Honor, to allow
16
that objection to be ruled upon, and in the meantime allow the
17
FBI to do its declassification review and to determine whether
18
or not that software is in there and whether or not it's
19
classified, if, indeed, the objection's not withheld.
20
21
22
THE COURT:
Now, Mr. Klayman, I have a couple of
follow-up questions for you.

I heard you say about two minutes ago that the
23
information is classified, and I seem to recall that at other
24
hearings you said to me, I don't know whether the
25
information's classified, Judge, I've never looked at it

17 of
53
myself, all I'm saying is it could be.
2
3
So did you perhaps misspeak this afternoon when you

said --
4
5
MR. KLAYMAN:
Okay.
Yeah, I think I misspoke in context.
Let me make that clear.

What I'm saying is that the -- I don't know whether,
if any such software exists, it's classified or not.
for the FBI to determine.
determination.
10
That's
And it must make that first initial
What I'm saying is that the communications that
11
Mr. Montgomery has had with the FBI since, pursuant to your
12
order, could lead potentially to disclosing classified
13
information about what's on those hard drives.
14
compromise the FBI's investigation, which is criminal, and
15
undoubtedly Defendants will make this public, and it could
16
compromise the national security of the United States.
17
that's why this is a very significant matter which can't be
18
taken lightly.
19
That could
And
And, in fact, you know, the Assistant U.S. Attorney,
20
Debra Curtis, has said to me orally, said, Larry, you know,
21
don't mix the civil with this criminal case.
22
to proceed criminally here.
23
that.
24
THE COURT:
25
MR. KLAYMAN:
I mean, we have
You know, we're concerned about
So when you -So, you know, it's -- and that's why I

18 of
53
point out, Your Honor, that at this stage, when the
Defendants, themselves, have rested their motion to dismiss on
the basis that Mr. Risen did not have access to the software,
therefore he couldn't have made his opinions that it was
fraudulent, and that his entire publication, "Pay Any Price,"
as concerns Mr. Montgomery was simply based on what was
already public in terms of prior newspaper articles and
Congressional testimony.
This -- and given the fact that they designated an
10
expert only by giving us his name on the last day, and could
11
have brought this issue up in front of the Court a lot sooner,
12
this is a strategy, a tactic, to put us in a Catch 22
13
situation, not just me -- I mean, not just Mr. Montgomery, but
14
the FBI and the Department of Justice, to try to get this case
15
dismissed.
16
It's kind of like heads, I win, tails you lose.
17
I mean, we didn't base this book on anything that
18
was confidential or classified.
19
when he testified.
20
Even Risen admitted to that
That's in the objection.
But now we're going to make an issue of it, because
21
if we can paint you into a corner, maybe we can get the
22
magistrate judge and/or the judge to rule that the case should
23
be dismissed if you don't turn over something that we never
24
even had anyway when we wrote the book or relied on.
25
See, and it's clever.
I predicted this to my

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53
colleagues from day one, that Defendants would try this, okay,
and this obviously has come to be true.
THE COURT:
Well, Mr. Klayman, you've already made
that argument to me before, and I certainly appreciate your
creativity, but you haven't persuaded me of that, because I've
already noted that this particular software is, in fact,
critical evidence in the case, because this is a defamation
case, and one of your main burdens as the Plaintiff is to
prove -- it's your burden to prove the falsity of the
10
allegation.
11
And, quite frankly, it doesn't really matter all
12
that much whether Mr. Risen had access to this software or
13
not.
14
Let's assume for the sake of discussion that he just
15
wildly speculated that the software didn't work.
16
seen it, he had never had access to it, he had never spoken to
17
anybody about it.
18
book that said the software doesn't work.
19
that the software doesn't work, then it's a true statement.
20
So that's still part of your burden of proof.
21
He had never
He was just incredibly reckless and wrote a

But if it turns out
So in any event, you've made that argument before,
22
and, quite frankly, you didn't make much headway then, and
23
you're not making much headway now.
24
25
But setting that aside, when you told me earlier

today that Mr. Montgomery has communicated with the FBI and

20 of
53
gave the FBI information so that it could try to track down
the software amongst this massive amount of electronically
stored information that was given to the FBI, were those
communications in writing, or were they oral, or were they
both?
MR. KLAYMAN:
They were in writing.
They were
forwarded to the FBI, and what I also argued was, Your Honor,
that Mr. Montgomery did this as soon as he could, because he's
been ill.
He was in a hospital, had another stroke.
And --
10
but that this is part -- to review that information while an
11
objection is pending -- we are challenging this with the
12
Court -- you know, could potentially compromise national
13
security.
14
He is a witness for the FBI.
15
THE COURT:
He's an informant.
Have you seen this letter, Mr. Klayman,
16
the one that you said Mr. Montgomery sent to the FBI in order
17
to give it instructions on how to track down the software?
18
19
20
21
22
MR. KLAYMAN:
I've seen the e-mails.
We forwarded
the information that he provided to us to the FBI.

THE COURT:
So you have seen the written
communications that Mr. Montgomery sent to the FBI?

MR. KLAYMAN:
I have seen that, but I have -- it's
23
not classified.
24
information that would possibly be classified, and that's why
25
I think it's sensitive.
All I'm saying is it could lead a person to

21 of
53
THE COURT:
Well, it may be sensitive, Mr. Klayman.
There are a lot of documents in lawsuits that are, quote,
sensitive, and a lot of documents that people would prefer not
to turn over.
your explanation is "could" or "potentially," which, to me, is
simply speculation.
But the most important word that you said in
You have already reviewed these communications, so
you have the ability to tell me, as an officer of the court,
unequivocally whether or not Mr. Montgomery's communications
10
by e-mail to the FBI in which he gave instructions on where to
11
find this software contains classified information.
12
reviewed it.
13
Does it contain classified --
14
MR. KLAYMAN:
15
You've
I don't believe it does, okay, but I
wanted to give the FBI the opportunity to deal with that.
16
See, I had no knowledge that Mr. Schwartz had given
17
anything to Ms. Handman.
18
some information, and she was not copied on it.
19
told by the FBI that I could turn anything over to her.
20
not.
21
THE COURT:
22
MR. KLAYMAN:
23
in that regard.
I was copied on an e-mail asking for
Okay.
I was never
I was
So --
I'll swear to an affidavit under oath
So --
24
THE COURT:
25
Let me just ask a question of defense counsel.
Hang on just a minute.

22 of
53
Ms. Handman, you had made reference to, among the
documents that you were looking for, a written agreement
between Mr. Montgomery and the Government and the FBI, and I
think you even issued or mentioned a date.
5
6
7
What was that specific date, the date of the

agreement that you're looking to obtain?
MS. HANDMAN:
It's referenced in Mr. Baker's letter
on September 8th, and I believe it's July 28 was the
agreement, letter agreement.
He says:
"Based upon the
10
proffer and your client's representations that certain
11
relevant information on the drives was highly classified, the
12
Government agreed to grant your client production immunity for
13
these items as memorialized in a letter agreement dated
14
July 28, 2015."
15
16
17
He then goes on to say -- there's an e-mail.
He
quotes an e-mail on August 12th about the retrieval process.

And then what I also referenced -- and those are
18
both referenced in Mr. Baker's letter, which I was CC'd on, as
19
were you, Your Honor, and was put in the public records.
20
Then I followed up with Mr. Schwartz, the gentleman
21
who forwarded Mr. Baker's letter.
22
counsel for the FBI, and he said:
23
He's the assistant general
"Ms. Handman, we are unable to provide documents you
24
request at this time, as requests to the FBI for documents in
25
connection with civil litigations must be made in accordance

23 of
53
with the DOJ's Touhy regulations, also to the extent any
documents that you request are covered by the Privacy Act, you
would need to provide us with a waiver, a court order or any
basis for production.
"I can tell you that the FBI sent Mr. Klayman an
e-mail on October 1, 2015, asking for more information and
clarification in response to an e-mail he sent on
September 24, 2015.
providing you a copy of that e-mail exchange or the other
10
documents you seek," which are the ones that include those
11
two -- the letter agreement that I had mentioned and the
12
e-mail of August 12th.
13
The FBI has no objection to Mr. Klayman
And we told Mr. Klayman that the FBI had no
14
objection, and frankly it's only the Government which can
15
assert the classified privilege, and they've not sought to
16
intervene in this case at any point in time.
17
In fact, in Mr. Baker's letter, he specifically
18
says:
19
nor understood any obligation to conduct a classification
20
review of any of these materials for the purpose of any civil
21
litigation."
22
"However, the Government neither agrees to undertake
And Mr. Klayman mentioned that Ms. Curtis said don't
23
mix the civil with the criminal.
24
by putting the alleged software, the one and only copy of the
25
alleged software, in with whatever data dump they gave to the
Well, you did -- they did,

24 of
53
1
2
Government.
And I would remind the Court that back at the
August 21 hearing -- and we briefed this in our August 4
memoranda -- we cited the Nevada court which has specifically
held that the software was not classified.
a party to that case.
The Government was
And then when Mr. Montgomery did not produce the
software, it sanctioned him with a $2500-a-day sanction, which
ultimately resulted in a $25 million concession of judgment by
10
Mr. Montgomery, followed by bankruptcy that was never
11
discharged, and a reinstatement of the judgment and no
12
production of the software.
13
14
15
So it seems to us that this is another effort to

circumvent this.
And this so-called investigation that Mr. Mont --
16
Mr. Klayman mentioned in which he purports to be a
17
whistleblower I think is what the investigation is that
18
Mr. Klayman is referring to, he told a very similar story to
19
the Maricopa County Sheriff's Office, who paid him
20
approximately $250,000, and he gave 49 hard drives to them,
21
and ultimately the sheriff's office had two former NSA experts
22
review the hard drives, and they provided a two-page memo on
23
November 13th, 2014, which was recently introduced in the
24
court proceeding in Arizona before federal judge Snow.
25
And their conclusion was that Montgomery, quote, "is

25 of
53
a complete and total fraud," and they said, "which, among
other things, that the 45 hard drives, among other things,
contain a high volume of recordings of Al Jazeera television
network," and their conclusion was, "in summary, this letter
certifies that as to the best of Mr. Weebie's (phonetic) and
Mr. Drake's knowledge, none of the data examined reveals or
otherwise supports the assertion that the data contained on
the hard drive resulted from the clandestine collection and
processing of modern digital network communications and is,
10
instead, evidence of an outright and fraudulent con
11
perpetrated on the Government for person gain and cover."
12
And these hard drives that were subsequently seized
13
by the U.S. Marshals under order of Judge Snow and I believe
14
are also being reviewed by DOJ at this point.
15
And what makes this conclusion so remarkable is not
16
only may our software be at issue in those hard drives, but
17
the two NSA experts, Tom Drake and Kirk Weebie, are clients of
18
Mr. Klayman, who filed a whistleblower suit on their behalf on
19
August 20th of this year in DC federal court.
20
hardly denigrate their expertise or counter their conclusions.
21
So whether there is indeed -- whether, indeed, he is
And so he can
22
a whistleblower, whether, indeed, his software is classified,
23
et cetera, this has been a story that's been told for a long
24
time.
25
All we're asking for is the software.
We're asking

26 of
53
that Mr. Montgomery supply the communications that he's made
to the FBI to enable them to produce the software, and that
the software be produced promptly so that we can defend this
case that he's brought.
And whether we can't defend it because it's
classified or whether we can't defend it because he's
presented it in such a manner to the FBI, his one and only
copy of the software, that it's now irretrievable, is not our
problem.
Our problem is we can't defend the case, and that's
10
why we're asking that the sanctions outlined in Rule 37 be
11
awarded.
12
MR. KLAYMAN:
13
THE COURT:
14
MS. HANDMAN:
15
THE COURT:
16
MS. HANDMAN:
17
And he's the one that forwarded the letter from
Your Honor --
What is Mr. Schwartz's first name again?

Ted.
Ted?
Ted.
18
Mr. Baker to Your Honor and to myself.
19
contacted him.
20
MR. KLAYMAN:
21
THE COURT:
22
MR. KLAYMAN:
23
That's nice testimony.
24
25
And so that's why I
Your Honor.
Yes, sir.
May I respond to that?
Unfortunately, Ms. Handman
is not a witness in this case.

I take extreme issue with her characterization of

27 of
53
the facts.
those hard drives, and neither does Mr. Montgomery.
the FBI, on more than one occasion, parameters on how to try
to find it, and they're making that effort right now.
that should be allowed to run its course, along with our
objection to this entire line of inquiry.
I do not know whether any such software exists on

He gave
And
Secondly, with regard to Mr. Schwartz, I have no
knowledge -- in fact, Ms. Handman basically says two different
things.
One, she says that Schwartz tells her that he just
10
can't turn over communications because there's been no Touhy
11
request.
I know Your Honor knows what a Touhy request is.
12
THE COURT:
13
MR. KLAYMAN:
14
First he says he can't do that, and then she says
15
Yes, I do.
Okay.
And no Privacy Act request.
the exact opposite, he says, oh, turn it over.
16
THE COURT:
17
What she said is that Mr. Schwartz said "I," meaning
No, that's not what Ms. Handman said.
18
the FBI, can't turn it over because of Touhy regulations and
19
the Privacy Act requirements.
20
Mr. Klayman or Mr. Montgomery from doing it, and "I, on behalf
21
of the FBI, have no objection if they turn it over."
22
That's --
23
MR. KLAYMAN:
24
THE COURT:
25
be saying.
But there is nothing to prevent
But here's the --
That's what I understand Ms. Handman to

28 of
53
MR. KLAYMAN:
Okay.
I have -- I had -- I have
confusion as to what maybe -- I haven't had much sleep in the
last few weeks.
stuff, and . . .
I've had, like, four court hearings and
THE COURT:
MR. KLAYMAN:
THE COURT:
8
9
Well, let's just clarify.

All right.
Ms. Handman, wasn't that the point that
you were making?

MS. HANDMAN:
Absolutely, Your Honor.
And I have an
10
e-mail that I'd be happy to furnish counsel and yourself that
11
says exactly that.
12
MR. KLAYMAN:
13
THE COURT:
14
An e-mail from who, Ms. Handman?
15
MS. HANDMAN:
16
THE COURT:
17
MR. KLAYMAN:
Well, that's nice, Your Honor.
Whoa, whoa, wait.
Mr. Schwartz.
Okay.
I don't have any such e-mail.
18
Mr. Schwartz has never told me or Mr. Montgomery anything to
19
that effect.
20
I have to honor the FBI, you know, Your Honor.
21
just that, you know.
22
was a law enforcement officer.
23
FBI agents as clients.
24
them, and, you know, Director Comey, who we dealt with
25
directly on this case through Mr. Baker.
I was a Justice Department lawyer.

I work with the FBI.
Not
I
I've had
I value highly my relationship with

29 of
53
And I just can't willy-nilly turn things over
between the FBI and us.
of knowing -- assuming it's true.
assumption, you know.
contest --
THE COURT:
And I wasn't even given the courtesy

And that's a big
And I don't want to get into a
You think that -- you think Ms. Handman
is making up the fact that she received an e-mail from Ted
Schwartz?
She manufactured a bogus document?

MR. KLAYMAN:
No, no.
In the past -- I mean, she
10
did make up things in the beginning of the case.
11
up with Your Honor.
12
won't.
13
14
THE COURT:
I brought it
You said don't bring it up again, so I
All right.
Well, don't bring that up
issue.
15
Let's take it one step at a time.
16
Ms. Handman, the e-mail from Mr. Ted Schwartz,
17
18
19
20
21
what's date of that e-mail, please?

MS. HANDMAN:
I wrote him on October 5th, and he
responded on October 6th, at 10:55 a.m.

THE COURT:
And you have Mr. Schwartz's response
e-mail there?
22
MS. HANDMAN:
23
THE COURT:
24
MS. HANDMAN:
25
THE COURT:
Yes, I do.
Read it, please.

Attached to my e-mail to him.
Read it, please.

30 of
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MS. HANDMAN:
"Ms. Handman, we are unable to provide the documents
you request at this time, as requests to the FBI for documents
in connection with civil litigation must be made in accordance
with DOJ's Touhy regulations, 28 CFR 1621, et seq.
Okay.
"Also, to the extent that any documents you request
are covered by the Privacy Act, 5 U.S.C. 552(a), you would
need to provide us with a waiver, court order or other basis
for production consistent with the Privacy Act.
10
"I can tell you that the FBI sent Mr. Klayman an
11
e-mail on October 1, 2015, asking for more information and
12
clarification in response to an e-mail he sent on
13
September 24, 2015.
14
providing you a copy of that e-mail exchange or the other
15
documents you seek."
16
The FBI has no objection to Mr. Klayman
And that references my e-mail below, where I ask for
17
that July 28 letter agreement and the August 12 e-mail, which
18
is subject to Your Honor's order of August 22, where you say
19
in paragraph 5:
20
Production 7 to Plaintiff, Plaintiff shall, by August 31,
21
2015, turn over all documents concerning this request" --
22
which was a request for documents as to the location of
23
software -- "which would now include documents related to the
24
disclosure and production of the subject software to the FBI."
25
"Concerning Defendants' request for
THE COURT:
All right.
So Ms. Handman, here's what

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you're gonna do for me, please.
By Monday, I want you to, under a notice of filing,
file your October 5th, 2015, e-mail to Mr. Schwartz, and then
his October 6th response e-mail to you.
Now, here's what you're going to do, Mr. Klayman.
I realize that you objected to my earlier ruling.
realize that you filed a motion for a stay, which I denied,
and therefore, in the absence of a stay from Judge Martinez or
someone else, you need to comply.
10
So by next Tuesday, this coming Tuesday, you will be
11
filing with the Court and producing to Ms. Handman copies of
12
all of the correspondence between you and the FBI, you and
13
Ms. Curtis, Mr. Montgomery and the FBI, Mr. Montgomery and
14
Ms. Curtis, concerning Mr. Montgomery's turning over of
15
various ESI, hard drives and other material to the FBI.
16
So that will include all the documents that we've
17
been talking about today, the July 28th, 2015, letter
18
agreement, the September 24th e-mail from you, an August 12th,
19
2015, e-mail, an October 1st, 2015, e-mail, all of the e-mails
20
or other correspondence that Mr. Montgomery sent to the FBI in
21
an effort to try to answer Mr. Baker's request for additional
22
information so that the FBI could try to find, in that massive
23
amount of electronic discovery, the software at issue here.
24
25
In addition to that, by next Wednesday, you, on

Mr. Montgomery's behalf, or Mr. Montgomery himself, will be

32 of
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sending the FBI, by e-mail, and in particular Mr. Schwartz, a
comprehensive set of instructions, the best available to
Mr. Montgomery, as to how to pinpoint the software at issue in
this case from the massive amount of material, the
51.6 million files totaling 600 million pages, that were
turned over to the FBI.
I realize that Mr. Montgomery may have already made
some effort in that regard in one or more e-mails, but I want
to make sure that he sends to the FBI the most detailed, most
10
comprehensive, most specific set of instructions and guidance
11
as to how to locate the software.
12
And if the answer is, gee, I really can't tell you
13
exactly how to pinpoint the software at issue in this civil
14
lawsuit from among the massive 51.6 million files turned over
15
to the FBI, then he shall so state in this written
16
communication, which must be sent by Wednesday.
17
that document, which will either be forwarded by you,
18
Mr. Klayman, or sent directly by Mr. Montgomery, will be filed
19
with the Court by the following day, which will be Thursday.
20
So that will be in the court file.
21
Copies of
In addition, by October 26, you will, in fact,
22
produce the software at issue in this case to the Defendants.
23
Now, I'm going to make sort of a practical
24
observation and a realistic comment, which is even though
25
you're now going to be under a specific court order to produce

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that software October 26th, I'm not naive, and I think there's
a significant chance that, for whatever reason, or reasons,
you and/or Mr. Montgomery will not be complying with that
order.
And, therefore, in connection with the
Government's -- I'm sorry, with the Defendants' request for
sanctions.
8
9
This is not a mild request.
You're seeking,
Ms. Handman, the ultimate sanction of a dismissal with
10
prejudice, really based on a spoliation theory, or a violation
11
of a court order, or a combination of both.
12
not the kind of routine, garden variety discovery matter that
13
I typically consider without the benefit of memoranda.
14
asking me to issue a report and recommendation that this
15
entire case be dismissed because the software most likely will
16
not be timely produced to you, notwithstanding the order
17
requiring it.
18
But that's really
You're
So, therefore, I'm not going to be able to assess
19
that request simply based on a telephone hearing and a letter
20
or two.
21
So if you want me to seriously contemplate issuing
22
that kind of a drastic substantial order of either a dismissal
23
with prejudice or a finding that the software didn't exist or
24
never worked, or even an adverse inference, you're going to
25
have to do so in a specific written motion, and, more

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importantly, with a supporting memorandum of law.
So my suggestion is that you get started on that
project now.
it, or one of your colleagues or maybe Mr. Toth, or maybe
other Holland & Knight lawyers, or maybe it will be drafted by
committee, I don't know.
that project underway, because the sooner that you get that to
me, the sooner I'll be able to make a ruling.
obviously I'm not going to be making a ruling simply based on,
10
number one, this phone call, and, number two, your motion and
11
memorandum.
12
adequately review Mr. Montgomery's response.
13
14
I don't know whether you're going to be drafting
But my suggestion is that you get
Because
I'm obviously going to have to need to see and
I'm sure Mr. Klayman will want a full and complete

opportunity to respond to your written motion and memorandum.
15
So you should probably all start whatever research
16
is necessary to get that underway so that we don't have to
17
unduly delay this case any further.
18
administrative order probably Monday summarizing the specific
19
rulings.
20
I'll be issuing a written
But just in case there's any confusion, Mr. Klayman,
21
do you have any questions about the specific rulings and the
22
deadlines that you and Montgomery have to comply with the
23
rulings made this afternoon?
24
MR. KLAYMAN:
25
We do await your written order, just in case we
No, Your Honor.

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haven't written it down correctly.
But I do have a request here, and we would ask that
in terms of producing, as far as what Your Honor has ordered,
communications with the FBI, that we be able to produce that
and file it under seal.
security reasons and also for the health, safety and welfare
of my own client, who's been threatened by the Government, by
certain forces in the Government.
I don't want this out for national
We believe that what Risen wrote was the result of
10
trying to smear him, because he's been trying to come forward
11
for years.
12
about a year ago, long before this case was filed.
13
like to be able to file that under seal to protect him, with
14
Your Honor's permission.
15
In fact, we started this process with the FBI
THE COURT:
So I would
Well, based on what I've heard so far,
16
Mr. Klayman, we're just talking about some e-mails between
17
Ms. Handman and Mr. Schwartz, some e-mail from Mr. Montgomery
18
saying presumably here's where you would look for this
19
specific file and the software that you have.
20
me that any of these e-mails will contain any classified
21
information or information that, for some reason, needs to be
22
filed under seal.
23
24
25
MR. KLAYMAN:
Let me tell you what my concern is in
that regard.
THE COURT:
Doesn't strike
Sure, sure, go ahead.

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MR. KLAYMAN:
there is a personal aspect of it.
Okay.
I don't mean to get personal here, but
Ms. Handman, as I said in an earlier hearing,
is very close with the Obama Administration and also very
close with Mrs. Clinton.
Honor may know who he is.
didn't bring it up -- at the earlier hearing.
8
9
Her husband is Harold Ickes.
Your
She made reference to him -- I
And I know from experience, having been with

Judicial Watch, that Mr. Ickes will do things that -- and I'm
10
trying to find a diplomatic way of doing it -- are very
11
destructive and very politically based, and could use
12
information to try to destroy my client.
13
And that kind of thing, this closeness with the
14
Clinton Administration and with the Obama Administration,
15
causes me great concern that they will use any information
16
that's out there in the public record to try to destroy my
17
client.
18
19
20
21
22
And I also have the national security concern,

so . . .
THE COURT:
So Mr. Klayman, I hear what you're
saying, and here's my observation.

I'm going to assume for the sake of discussion that
23
your perspective is correct.
24
Ms. Handman's husband does, in fact, have that motivation.
25
In other words, assume that
Even if true, that doesn't mean that the documents

37 of
53
that I'm requiring you to be filed would be the type of
document that he or any other political operative could
somehow use to unfairly intimidate, threaten or prejudice your
client.
innocuous.
The documents seem, on their face, to be fairly
So even if you perceive him to be a very
Machiavellian fellow who is sharpening his knives in order to
go after you or Mr. Montgomery, if the information itself is
innocuous, there's not much that he can do.
10
11
12
So I'm sensitive to your concern, and I don't want

to just, if I can use the phrase, willy-nilly minimize it.
But what I will do is I'll give you the opportunity
13
to review the materials yourself and take a good, hard look at
14
them, and if you, in good faith, believe that there is
15
something in these documents that compel an under-seal filing,
16
then I'll permit you to file a motion to file the materials
17
under seal in compliance with the local rule, which means you
18
have to explain the good grounds to file it under seal, and at
19
that point the documents will be filed under seal.
20
You will then --
21
MR. KLAYMAN:
22
THE COURT:
23
MR. KLAYMAN:
24
THE COURT:
25
I will do that.
Let me just finish.

Okay.
If you decide to do that -- and, by the
way, it doesn't have to be an all or nothing arrangement.

38 of
53
In other words, let's say for the sake of
discussion, Mr. Clayman, there are 12 pieces of paper that
you're filing, seven e-mails and three letters -- I'm just --
and two other memos.
12 pieces of paper are worthy of an under-seal filing.
would only try to file, or file a motion for an under-seal
presentation as to the two pages, not to everything.
you'll make a page-by-page good faith assessment.
So it may be that only two out of those

So you
So
But then, in addition to that, you will file a
10
courtesy copy of your motion to file under seal, as well as
11
the under-seal documents, to me.
12
in one of two ways.
13
to my chambers, or you can submit them to my e-file inbox,
14
which is Goodman@FLSD -- F, as in Frank -- FLSD.USCOURTS.GOV.
You can have them delivered
You can either have them hand delivered
15
And then I'll be able to review those materials
16
myself and make a determination as to whether or not your
17
motion to file under seal was well taken.
18
taken, the provisional under-seal filing will remain under
19
seal.
20
others, I'll issue an appropriate ruling to unseal some of
21
these pages, but not others.
22
your presentation, then I'll issue an order to unseal all of
23
them.
24
25
And if it is well
And if I agree with some of your conclusions but not
And if I disagree with all of
By the way, this is not a procedure unique to this

case.
I have several major cases where people are regularly

39 of
53
filing materials under seal, and when I think that perhaps an
under-seal filing is not such a slam dunk decision I follow
this procedure, and then at times I agree with the under-seal
filing, and at times not, and then the documents are unsealed.
5
6
All I would ask you to do, Mr. Klayman, is -- is to

take a reasonable, rational view of these materials.
And my suspicion is that at least some of them may
not be so classified, so confidential, so sensitive, that they
need to be filed under seal, because my -- my knee jerk
10
reaction, even though I haven't seen the documents, my knee
11
jerk reaction is that Mr. Schwartz, who's a high ranking FBI
12
attorney, would be hard pressed to be writing Ms. Klayman
13
(sic) to say, but it's -- we're perfectly okay if these
14
documents are disclosed by someone else, if those documents
15
contained classified information.
16
be hesitant about making that kind of a comment if the
17
documents were as sensitive as you suspect that they may be.
18
But in any event, that's the protocol that we will
I think he probably would
19
follow, and everybody has their homework assignment, and to
20
the extent there's any confusion, the written order
21
memorializing the rulings will be out to give you some
22
guidance.
23
So --
24
MS. HANDMAN:
25
I assume that we will get copies of the filings --
Judge Goodman, one other thing.

40 of
53
the motion to file under seal, as well as the unseal -- the --
all the documents so that we can review and respond.
that's not putting on the record.
restriction, other than obviously we won't make it public
until you've ruled on what is or is not sealed, but I
assume --
I mean,
It's not subject to any
THE COURT:
In other words, when Mr. Klayman --
First of all, he may not even file a motion to seal.
Well, sort of, but not exactly.
10
Maybe he'll review the documents and say, you know, on second
11
thought I may have overstated the sensitive nature, and maybe
12
they don't need to be filed under seal.
13
possibility.
14
So that's always a
But if he does decide to file it under seal, he'll
15
file a motion.
16
procedures, and it will have to be, you know, personally
17
hand-delivered over to the sealing clerk here in the Clerk of
18
the Court, and it will be a motion to file under seal, and
19
then the actual under-seal submissions will be attached.
20
so therefore that's filed under seal.
21
He'll have to follow the local rule
But, Mr. Klayman, you will serve counsel in the case
22
with a copy of the motion itself, not the under-seal
23
documents, but the motion.
24
25
And
Because the motion itself is not a sensitive

document.
The motion is merely the request for an under-seal

41 of
53
filing, along with the purported rationale for the under-seal
filing.
quoting the actual language from the documents under seal,
because that would let the cat out of the bag.
So obviously in the motion you're not going to be
You understand what I'm saying, right?
MR. KLAYMAN:
And I just have a --
MS. HANDMAN:
Judge Goodman, this is not -- I mean,
when things get -- you know, a motion is made under seal, the
10
parties get to see it.
11
see it.
12
THE COURT:
13
MS. HANDMAN:
14
I do.
It's the public that doesn't get to
No, no, no.

Unless you're seeking in-camera
review, ex parte in-camera review.
15
And, you know, I absolutely take issue, of course,
16
with everything he said about me and my husband, but I won't
17
clutter the record with that.
18
not be able to see it, as well.
19
able to see it, and, yes, we're bound not to disclose it while
20
we see it and it's under seal.
21
when there's a motion to file something under seal, that
22
doesn't exclude the parties to the litigation.
23
by the sealing until it's unsealed.
24
25
THE COURT:
on the circumstances.
But the notion that we should

Yes, the public may not be
But it's my understanding that
It depends, Ms. Handman.
They are bound
It all depends

42 of
53
I have cases all the time where people make an
under-seal filing where the actual under-seal submission is
not shown to the other side.
For example, let's say that somebody is arguing that
a document is protected by work product or attorney/client.
Obviously, they're not going to be submitting copies of a work
product document to the other side.
an in-camera ex parte examination by the judge.
it will be me.
Instead, it's subject to

In this case
And if I look at the material and decide that
10
it is privileged, then the under-seal submission remains under
11
seal, and the opposing party will not get to see it.
12
On the other hand, if I disagree with that theory,
13
then I'll make an appropriate ruling, and the documents are
14
unsealed, and then the opposing counsel gets to see it.
15
So in this particular --
16
MS. HANDMAN:
Your Honor, that's privilege material
17
that obviously, you know, you're trying to protect from the
18
other side seeing.
19
protective order in place, that it could be produced subject
20
to that, as well.
21
applying here, where -- as to the parties.
22
yes.
23
This is a motion to seal.
We have a
And I really don't see the same process

As to the public,
And I would point out if Mr. Klayman has it -- I
24
don't believe he's gotten classification -- clearance,
25
security clearance.
He says he doesn't have it, and that's

43 of
53
why he hasn't looked at anything.
think they could possibly be classified or subject to a
security clearance, and I don't know that he could provide it
to you without a security clearance.
So, by definition, I don't
So I really don't think it's the same process as
privilege, and we do have a protective order, and I am an
officer of the court, and I would observe any sealing
requirements that is in place.
THE COURT:
So Mr. Klayman, is it your position that
10
the under-seal filing should also preclude opposing counsel
11
from reviewing these materials, or just the public?
12
13
MR. KLAYMAN:
Well, subject to your review, Your
Honor.
14
I think you laid out a very fair and reasonable and
15
legally defensible procedure here.
16
see it first.
17
I'd like you to be able to
Now, I do have concerns about it being turned over
18
before you have a chance to take a look at it.
19
to tell you, I mean, Mrs. Handman started laughing when I made
20
reference to Harold Ickes, her husband.
21
twice in the 1990s, and it was believed -- and I certainly
22
believe it based on the information I got -- that he
23
intimidated witnesses during that period of Clinton scandals.
24
And that's why the court, Judge Lambert, allowed me to depose
25
him.
And I've got
But I deposed him

44 of
53
In fact, he was ordered back at a deposition, when
he left the deposition room claiming he was going to defecate
on my carpet.
Okay.
THE COURT:
6
7
So I have -I think we're getting a little far
afield here, Mr. Klayman.

MR. KLAYMAN:
Okay.
I have serious concerns, and I
want an order -- I would ask the Court to make an order to
Ms. Handman not to share this information with her husband.
10
MS. HANDMAN:
Believe me, he has no interest in it.
11
MR. KLAYMAN:
Oh, I believe he has a great interest,
12
because Mr. Montgomery does have information about both the
13
Obama Administration and Hillary Clinton, okay, and you are
14
both very close with her.
15
THE COURT:
16
It's now 5:30 on a Friday afternoon, and the hearing
Listen, folks, folks, I'm sorry.
17
is about to end.
18
then I asked if there were any questions about the ruling.
In fact, I thought the hearing did end, and
19
So when you file --
20
First of all, who knows whether you're going to even
21
want to file all or some of these documents under seal.
22
may have second thoughts.
23
all under seal, you'll file the appropriate motion, you'll
24
attach the documents to be filed under seal.
25
Ms. Handman with a copy of the motion, as well as copies of
You
But if you do want to file some or
You'll serve

45 of
53
the under-seal documents.
2
3
Ms. Handman will not be able to provide or share or

discuss those documents with her husband.
And then, in addition, you will serve me with a
courtesy copy of the under-seal documents.
you the two alternatives for providing courtesy copies to me.
And then I will decide whether or not an under-seal
I've already told
submission is possible.
Based on what you've told me so far, Mr. Klayman, it
10
sounds like you have a significant hurdle to clear to convince
11
me, because these documents sound to be relatively innocuous,
12
and the mere fact that you or Mr. Montgomery would prefer that
13
they not be filed, or that you (sic) might be potentially
14
embarrassing, or they're, quote, sensitive, whatever that
15
means, typically those are not sufficient reasons for an
16
under-seal filing.
17
So that's my general orientation.
18
So that's the ruling.
19
what's going to be happening in the next few days.
20
21
I think everybody understands
So we will be in recess, and I wish everybody a good

weekend.
Take care.
By, now.
22
MR. KLAYMAN:
23
MS. HANDMAN:
24
25
(Proceedings concluded.)
* * * * *

46 of
53
* * * * *
I N D E X
Oral Argument
* * * * *
E X H I B I T S
(None.)
* * * * *
CERTIFICATE
9
10
I, Stephen W. Franklin, Registered Merit Reporter, and
11
Certified Realtime Reporter, certify that the foregoing is a
12
correct transcript from the record of proceedings in the
13
above-entitled matter.
14
Dated this 22nd day of OCTOBER, 2015.
15
16
17
18
19
20
21
22
23
24
25
/s/Stephen W. Franklin
_____________________________
Stephen W. Franklin, RMR, CRR
46

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amount [4] 7/1 19/2
30/23 31/4
amounting [1] 6/23
and/or [2] 17/22 32/3
another [3] 15/5 19/9
23/13
answer [2] 30/21 31/12
any [38]
anybody [1] 18/17
anything [8] 3/9 12/7
14/1 17/17 20/17 20/19
27/18 42/1
anyway [1] 17/24
aol.com [1] 1/18
apparently [1] 4/2
appearances [2] 1/14
3/11
applying [1] 41/21
appreciate [1] 18/4
approaching [1] 9/2
appropriate [3] 37/20
41/13 43/23
approximately [1] 23/20
argued [1] 19/7
arguing [1] 41/4
Arizona [1] 23/24

around [1] 12/7
arrangement [1] 36/25
articles [1] 17/7
aside [1] 18/24
ask [11] 9/14 9/19 9/21
10/3 10/5 10/6 20/25
29/16 34/2 38/5 43/8
asked [4] 7/10 8/7 8/9
43/18
asking [9] 8/1 13/3
20/17 22/6 24/25 24/25
25/10 29/11 32/14
aspect [1] 35/2
assert [1] 22/15
assertion [1] 24/7
assess [1] 32/18
assessment [1] 37/8
assignment [1] 38/19
assist [1] 6/18
assistant [5] 7/23 7/23
12/1 16/19 21/21
assume [7] 11/18 12/24
18/14 35/22 35/23 38/25
39/6
assuming [1] 28/3
assumption [1] 28/4
attach [1] 43/24
attached [2] 28/24 39/19
attaching [1] 6/11
attempt [1] 12/12
attention [1] 5/15
attorney [4] 12/1 16/19
38/12 41/5
attorney/client [1] 41/5
August [22]
August 1 [1] 9/10
August 12 [1] 29/17
August 12th [3] 21/16
22/12 30/18
August 19th [1] 6/21
August 20th [1] 24/19
August 21 [1] 23/3
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August 22 [2] 8/15
29/18
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5/23 6/4 7/15 9/8 10/18
10/19
August 31 [1] 29/20
August 4 [1] 23/3
AUSA [2] 6/10 12/8
authority [2] 10/10
10/12
available [1] 31/2
Avenue [2] 2/6 2/9
await [1] 33/25
awarded [1] 25/11
aware [1] 6/15
away [1] 9/2
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back [5] 4/6 6/13 15/5
23/2 43/1
Baker [7] 6/14 6/23 7/1

7/5 10/24 25/18 27/25
Baker's [8] 7/13 9/11
11/24 21/7 21/18 21/21
22/17 30/21
bankruptcy [1] 23/10
base [1] 17/17
based [10] 13/9 17/6
21/9 32/10 32/19 33/9
34/15 35/11 42/22 44/9
basically [1] 26/8
basing [1] 15/11
basis [4] 13/2 17/3 22/4
29/8
Beach [1] 1/17
because [23]
beeping [1] 3/6
before [8] 1/11 6/21
6/21 18/4 18/21 23/24
34/12 42/18
beginning [1] 28/10
behalf [3] 24/18 26/20
30/25
being [5] 4/14 11/12
12/17 24/14 42/17
believe [10] 3/12 20/14
21/8 24/13 34/9 36/14
41/24 42/22 43/10 43/11
believed [1] 42/21
below [1] 29/16
benefit [1] 32/13
best [3] 11/10 24/5 31/2
between [4] 21/3 28/2
30/12 34/16
big [1] 28/3
Bloomberg [1] 13/11
bogus [1] 28/8
Bohrer [2] 2/8 5/10
book [5] 13/13 13/14
17/17 17/24 18/18
both [7] 9/10 12/3 19/5
21/18 32/11 43/12 43/14
bottom [1] 14/5
Boulevard [1] 4/1
bound [2] 40/19 40/22
Brickell [1] 2/9
brief [1] 9/1
briefed [1] 23/3
bring [4] 5/14 28/11
28/13 35/7
brought [3] 17/11 25/4
28/10
burden [2] 18/9 18/20
burdens [1] 18/8
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called [2] 12/16 23/15
Calling [1] 3/2
came [2] 13/10 15/14
camera [3] 40/13 40/14
41/8
can't [9] 16/17 25/5 25/6
25/9 26/10 26/14 26/18
28/1 31/12
care [1] 44/21
carpet [1] 43/3
47

Coral [1] 2/3
communication [1]
defense [2] 5/14 20/25 documentation [2] 9/17
C
53
case [32]
cases [2] 37/25 41/1
cat [1] 40/4
Catch [2] 13/21 17/12
causes [1] 35/15
causing [1] 10/2
CC'd [1] 21/18
certain [2] 21/10 34/8
certainly [2] 18/4 42/21
CERTIFICATE [1]
45/8
Certified [1] 45/11
certifies [1] 24/5
certify [1] 45/11
cetera [1] 24/23
CFR [1] 29/5
challenging [1] 19/11
chambers [1] 37/13
chance [2] 32/2 42/18
characterization [1]
25/25
circumstances [1] 40/25
circumvent [1] 23/14
cited [2] 10/10 23/4
CIV [1] 1/2
civil [8] 3/3 12/5 16/21
21/25 22/20 22/23 29/4
31/13
claiming [1] 43/2
claims [1] 6/24
clandestine [1] 24/8
clarification [3] 8/2 22/7
29/12
clarify [1] 27/5
classification [4] 10/25
12/13 22/19 41/24
classified [27]
Clayman [1] 37/2
clear [2] 16/5 44/10
clearance [4] 41/24
41/25 42/3 42/4
clearly [1] 8/14
Clematis [1] 1/17
clerk [2] 39/17 39/17
clever [1] 17/25
client [6] 21/12 34/7
35/12 35/17 36/4 41/5
client's [1] 21/10
clients [2] 24/17 27/23
Clinton [5] 12/16 35/5
35/14 42/23 43/13
close [4] 11/18 35/4 35/5
43/14
closeness [1] 35/13
clutter [1] 40/17
colleagues [2] 18/1 33/4
collection [1] 24/8
combination [1] 32/11
comes [1] 15/6
Comey [1] 27/24
coming [1] 30/10
comment [2] 31/24
38/16
committee [1] 33/6
communicated [3] 7/22
11/8 18/25
corner [1] 17/21

31/16
correct [3] 4/16 35/23
communications [20]
45/12
comparison [1] 12/19
correctly [1] 34/1
compel [1] 36/15
complete [2] 24/1 33/13 correspondence [3]
11/16 30/12 30/20
completely [1] 12/11
couldn't [2] 11/2 17/4
compliance [1] 36/17
comply [4] 5/18 10/17 counsel [14] 3/7 3/13
6/10 6/12 6/13 6/14 7/23
30/9 33/22
8/7 20/25 21/22 27/10
complying [1] 32/3
comprehensive [2] 31/2 39/21 41/14 42/10
counter [1] 24/20
31/10
compromise [5] 14/16 country [1] 15/1
14/24 16/14 16/16 19/12 County [1] 23/19
couple [1] 15/20
con [1] 24/10
concern [4] 34/23 35/15 course [4] 14/8 15/3
26/5 40/15
35/18 36/10
court [33]
concerned [1] 16/22
Court's [3] 5/18 8/14
concerning [4] 12/16
8/23
29/19 29/21 30/14
concerns [3] 17/6 42/17 courtesy [4] 28/2 37/10
44/5 44/6
43/7
cover [1] 24/11
concerted [1] 11/9
covered [2] 22/2 29/7
concession [1] 23/9
CPE [1] 1/16
concluded [1] 44/24
create [2] 11/3 13/21
conclusion [3] 23/25
creation [1] 7/8
24/4 24/15
creativity [1] 18/5
conclusions [2] 24/20
criminal [9] 11/11 11/15
37/19
conduct [2] 10/25 22/19 11/19 11/22 14/17 14/24
16/14 16/21 22/23
conducting [2] 10/24
criminally [1] 16/22
12/13
critical [2] 8/19 18/7
confer [2] 7/25 8/8
confidential [4] 13/12 CRR [2] 1/16 45/17
Curtis [5] 6/10 16/20
13/16 17/18 38/8
22/22 30/13 30/14
confirmation [2] 7/22
8/10
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confirmed [2] 13/15
damage [1] 14/25
13/20
confusion [3] 27/2 33/20 data [3] 22/25 24/6 24/7
date [5] 7/8 21/4 21/5
38/20
Congressional [2] 13/11 21/5 28/17
dated [2] 21/13 45/14
17/8
daughter [1] 4/15
connection [3] 21/25
Davis [1] 2/6
29/4 32/5
days [3] 6/21 12/15
consider [1] 32/13
44/19
consistent [1] 29/9
DC [3] 2/7 5/5 24/19
contacted [1] 25/19
contain [3] 20/13 24/3 deadline [1] 9/1
deadlines [1] 33/22
34/20
contained [2] 24/7 38/15 deal [1] 20/15
dealt [1] 27/24
containing [1] 6/22
Debra [1] 16/20
contains [1] 20/11
contemplate [1] 32/21 decide [4] 36/24 39/14
41/9 44/7
contest [1] 28/5
context [2] 11/15 16/4 decision [2] 9/24 38/2
declassification [1]
continued [1] 6/6
contrary [2] 11/23 13/13 15/17
defamation [1] 18/7
convince [1] 44/10
copied [3] 11/17 20/17 defecate [1] 43/2
defend [5] 10/2 25/3
20/18
25/5 25/6 25/9
copies [6] 30/11 31/16
defendants [9] 1/7 2/5
38/25 41/6 43/25 44/6
copy [14] 5/25 6/13 8/6 5/25 6/8 11/4 16/15 17/2
18/1 31/22
8/16 8/17 9/25 22/9
22/24 25/8 29/14 37/10 Defendants' [4] 6/14
10/2 29/19 32/6
39/22 43/25 44/5
defensible [1] 42/15

defiance [1] 8/22
definition [1] 42/1
delay [1] 33/17
deliberate [2] 8/22 9/24
delivered [3] 37/11
37/12 39/17
demand [1] 6/16
demeanor [1] 3/25
denial [1] 5/22
denied [1] 30/7
denigrate [1] 24/20
DENNIS [1] 1/3
Department [3] 11/20
17/14 27/21
depends [2] 40/24 40/24
depose [1] 42/24
deposed [2] 13/15 42/20
deposition [2] 43/1 43/2
described [2] 5/22 6/5
designated [2] 13/24
17/9
designation [1] 7/6
despite [1] 15/4
destroy [2] 35/12 35/16
destructive [1] 35/11
detailed [1] 31/9
determination [2] 16/9
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determine [2] 15/17
16/8
didn't [8] 13/16 14/1
14/9 17/17 18/15 18/22
32/23 35/7
different [1] 26/8
difficult [1] 8/21
difficulty [1] 11/6
digital [1] 24/9
diligent [1] 12/25
Dina [1] 12/4
diplomatic [1] 35/10
directly [2] 27/25 31/18
Director [1] 27/24
disagree [2] 37/21 41/12
discharged [1] 23/11
disclose [1] 40/19
disclosed [1] 38/14
disclosing [1] 16/12
disclosure [1] 29/24
discovery [9] 1/10 5/13
5/19 8/18 9/1 9/4 15/8
30/23 32/12
discs [1] 14/13
discuss [1] 44/3
discussion [3] 18/14
35/22 37/2
dismiss [5] 10/5 13/8
15/13 15/13 17/2
dismissal [2] 32/9 32/22
dismissed [5] 10/6 13/22
17/15 17/23 32/15
dispute [1] 5/13
DISTRICT [2] 1/1 1/1
diverted [1] 14/6
document [8] 6/15 8/20
28/8 31/17 36/2 39/25
41/5 41/7
10/21
documents [39]
does [7] 11/1 20/13
20/14 26/2 35/24 39/14
43/12
doesn't [9] 18/11 18/18
18/19 34/19 35/25 36/25
40/10 40/22 41/25
dog [5] 4/10 4/11 4/14
4/19 4/20
doing [2] 26/20 35/10
DOJ [1] 24/14
DOJ's [2] 22/1 29/5
don't [30]
done [3] 9/15 9/18 13/25
down [3] 19/1 19/17
34/1
drafted [1] 33/5
drafting [1] 33/3
Drake [1] 24/17
Drake's [1] 24/6
drastic [1] 32/22
draw [1] 10/8
drive [2] 7/6 24/8
drives [11] 6/22 10/21
16/13 21/11 23/20 23/22
24/2 24/12 24/16 26/2
30/15
due [4] 9/24 12/21 13/1
15/7
dump [2] 8/20 22/25
dunk [1] 38/2
during [1] 42/23
E
e-file [1] 37/13
e-mail [33]
e-mails [6] 19/18 30/19
31/8 34/16 34/20 37/3
earlier [4] 18/24 30/6
35/3 35/7
early [1] 13/8
effect [2] 6/2 27/19
effort [5] 11/9 23/13
26/4 30/21 31/8
either [5] 5/6 10/7 31/17
32/22 37/12
electronic [1] 30/23
electronically [1] 19/2
else [3] 5/3 30/9 38/14
embarrassing [1] 44/14
enable [1] 25/2
end [2] 43/17 43/17
enforcement [1] 27/22
engaged [1] 8/22
entire [4] 6/3 17/5 26/6
32/15
entitled [1] 45/13
ESI [1] 30/15
ESQ [4] 2/2 2/5 2/5 2/8
et [4] 1/6 3/3 24/23 29/5
et cetera [1] 24/23
even [16]
event [2] 18/21 38/18
everybody [4] 3/8 38/19
44/18 44/20
everyone [1] 5/12
48

38/1 38/2 38/4 40/1 40/2 14/22 36/13 36/14 36/18 5/17 12/18 14/5 14/18
informant [2] 14/19
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information [42]
information's [1] 15/25
initial [2] 13/8 16/8
initially [1] 14/10
innocuous [3] 36/5 36/9
44/11
inquiry [1] 26/6
inside [1] 13/13
instead [3] 9/25 24/10
41/7
instructions [5] 7/4
19/17 20/10 31/2 31/10
interest [2] 43/10 43/11
interests [1] 14/15
internal [1] 14/23
intervene [1] 22/16
interview [1] 4/6
interviewed [2] 3/21
3/24
interviews [2] 3/23 4/22
intimidate [1] 36/3
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intimidated [1] 42/23
hand [4] 12/2 37/12
introduced [1] 23/23
39/17 41/12
investigation [8] 11/11
hand-delivered [1]
11/15 11/19 14/17 14/24
39/17
16/14 23/15 23/17
Handman [26]
investigatory [1] 11/21
Handman's [1] 35/24
involved [1] 11/22
Hang [1] 20/24
ironic [1] 13/5
happen [1] 13/7
irretrievable [1] 25/8
happening [1] 44/19
issue [15] 6/19 13/5
happy [4] 5/12 5/15
17/11 17/20 24/16 25/25
10/11 27/10
28/14 30/23 31/3 31/13
I
hard [13] 6/22 10/20
31/22 32/14 37/20 37/22
16/13 23/20 23/22 24/2 I'd [2] 27/10 42/15
40/15
24/8 24/12 24/16 26/2
I'll [9] 20/22 33/8 33/17 issued [1] 21/4
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36/12 36/16 37/15 37/20 issuing [2] 32/21 33/17
30/15 36/13 38/12
face [1] 36/4
hardly [1] 24/20
37/22 41/13
it's [33]
fact [19]
Harold [2] 35/5 42/20 I'm [21]
items [1] 21/13
facts [1] 26/1
hasn't [2] 15/8 42/1
I've [8] 15/25 18/5 19/18 itself [4] 8/12 36/8 39/22
failure [1] 5/17
haven't [5] 3/9 18/5 27/2 27/3 27/22 34/15 42/18 39/24
fair [1] 42/14
34/1 38/10
44/5
fairly [1] 36/4
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Ickes [3] 35/5 35/9
having [2] 11/7 35/8
faith [3] 14/22 36/14
he'll [3] 39/10 39/14
42/20
JAMES [3] 1/6 12/4
37/8
39/15
identifiers [1] 7/8
12/4
false [1] 13/14
he's [11] 11/24 14/19
identify [1] 9/16
Jazeera [1] 24/3
falsity [1] 18/9
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19/8 19/14 21/21 25/1
ill [1] 19/9
jerk [2] 38/9 38/11
far [4] 34/3 34/15 43/5
gain [1] 24/11
25/4 25/6 25/17 34/10
immunity [2] 14/20
Jimmy [2] 3/19 3/22
44/9
garden [1] 32/12
41/24
21/12
JONATHAN [2] 1/11
fast [1] 9/1
gave [6] 6/20 19/1 20/10 heads [1] 17/16
important [4] 6/3 12/14 3/4
FBI [82]
22/25 23/20 26/2
headway [2] 18/22
14/7 20/4
judge [13] 1/12 13/3
FBI's [5] 6/12 7/23 9/12
gee [1] 31/12
18/23
importantly [2] 6/17
15/10 15/25 17/22 17/22
14/12 16/14
general [4] 6/12 7/23
health [1] 34/6
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23/24 24/13 30/8 38/24
federal [3] 14/2 23/24
21/21 44/17
hear [2] 5/15 35/20
impose [1] 10/3
40/8 41/8 42/24
24/19
gentleman [1] 21/20
heard [3] 3/6 15/22
impossible [1] 8/21
judgment [2] 23/9 23/11
fellow [3] 3/21 3/24 36/7
gets [1] 41/14
34/15
in-camera [3] 40/13
Judicial [1] 35/9
few [2] 27/3 44/19
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40/14 41/8
July [5] 9/9 21/8 21/14
hearing [11] 1/10 5/18
field [1] 12/1
give [6] 4/5 14/1 19/17
5/22 6/21 13/8 23/3
inbox [1] 37/13
29/17 30/17
file [25]
20/15 36/12 38/21
include [3] 22/10 29/23 July 28 [4] 9/9 21/8
32/19 35/3 35/7 43/16
filed [13] 12/3 24/18
given [6] 11/8 13/14
43/17
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21/14 29/17
30/7 31/18 34/12 34/22
17/9 19/3 20/16 28/2
hearings [2] 15/24 27/3 including [2] 9/9 9/22
July 28th [1] 30/17
36/1 36/19 38/9 39/12
giving [2] 8/16 17/10
held [3] 4/6 4/25 23/5
incredibly [1] 18/17
June [1] 8/18
39/20 43/24 44/13
indeed [4] 15/19 24/21 June 1 [1] 8/18
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helpful [1] 14/15
files [3] 6/23 31/5 31/14
going [16]
helping [1] 15/4
24/21 24/22
jurist [1] 12/25
filing [14] 30/2 30/11
gonna [1] 30/1
Hence [1] 7/1
indicates [1] 3/7
just [25]
36/15 37/3 37/5 37/18
good [9] 3/5 3/17 5/2
inference [2] 10/8 32/24 Justice [3] 11/20 17/14
here [15] 3/8 5/9 5/13
everything [4] 13/9 14/4
37/7 40/16
evidence [5] 6/3 7/17
8/19 18/7 24/10
evidencing [1] 7/12
ex [2] 40/14 41/8
exact [1] 26/15
exactly [3] 27/11 31/13
39/7
examination [1] 41/8
examine [1] 9/3
examined [1] 24/6
example [1] 41/4
exchange [4] 8/6 8/8
22/9 29/14
exclude [1] 40/22
exist [4] 10/7 10/9 11/1
32/23
existed [4] 10/20 10/22
11/2 12/7
exists [5] 11/10 11/13
14/11 16/7 26/1
experience [1] 35/8
expert [4] 9/3 13/24
14/2 17/10
expertise [1] 24/20
experts [3] 14/3 23/21
24/17
explain [1] 36/18
explanation [1] 20/5
expose [1] 14/14
extension [2] 9/1 15/8
extent [3] 22/1 29/6
38/20
extreme [2] 10/2 25/25
41/2 42/10 44/16

filings [1] 38/25
finally [1] 9/19
finding [2] 10/7 32/23
finish [1] 36/22
Firm [1] 2/3
first [9] 3/12 10/5 10/17
16/8 25/13 26/14 39/9
42/16 43/20
FL [2] 2/4 2/10
FLORIDA [3] 1/1 1/7
1/17
FLSD [1] 37/14
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V [1] 37/14
folks [3] 3/5 43/15 43/15
follow [5] 9/4 15/21 38/2
38/19 39/15
follow-up [2] 9/4 15/21
followed [2] 21/20 23/10
following [1] 31/19
Footnote [1] 10/10
Footnote 17 [1] 10/10
forces [1] 34/8
foregoing [1] 45/11
foreign [1] 14/15
formal [1] 8/4
former [2] 11/19 23/21
forthright [1] 12/11
forward [1] 34/10
forwarded [5] 19/7
19/18 21/21 25/17 31/17
four [2] 7/8 27/3
Frank [1] 37/14
Franklin [4] 1/16 45/10
45/16 45/17
frankly [3] 18/11 18/22
22/14
fraud [1] 24/1
fraudulent [2] 17/5
24/10
Friday [2] 5/12 43/16
front [1] 17/11
full [1] 33/13
furnish [1] 27/10
further [1] 33/17
37/8 44/20
GOODMAN [5] 1/11
3/4 37/14 38/24 40/8
gosh [3] 4/1 4/16 5/1
got [4] 3/8 14/20 42/18
42/22
gotten [3] 4/19 8/13
41/24
Government [14] 6/15
6/18 7/3 13/13 13/17
21/3 21/12 22/14 22/18
23/1 23/5 24/11 34/7
34/8
Government's [1] 32/6
grant [1] 21/12
great [3] 11/5 35/15
43/11
grounds [1] 36/18
guess [2] 4/6 4/22
guidance [2] 31/10
38/22
16/22 30/23 34/2 35/1

39/17 41/21 42/15 43/6
here's [5] 26/23 29/25
30/5 34/18 35/21
herring [1] 13/19
hesitant [1] 38/16
high [3] 12/20 24/3
38/11
highest [1] 11/25
highly [3] 14/22 21/11
27/23
Hillary [2] 12/16 43/13
himself [1] 30/25
hold [1] 4/23
holding [1] 4/11
Holland [2] 2/9 33/5
Hollywood [1] 4/2
homework [1] 38/19
honest [1] 11/24
honor [39]
Honor's [2] 29/18 34/14
HONORABLE [2] 1/11
3/4
hope [1] 13/4
hopefully [1] 3/12
hoping [1] 3/6
hospital [2] 15/5 19/9
However [2] 11/11
22/18
huge [1] 12/19
hurdle [1] 44/10
husband [6] 35/5 35/24
40/16 42/20 43/9 44/3
49

35/24
12/1
42/1
objections [1] 8/9
J
53
Justice... [1] 27/21
K
keep [1] 9/24
keeping [3] 5/25 8/17
11/18
Kimmel [2] 3/19 3/22
kind [5] 17/16 32/12
32/22 35/13 38/16
Kirk [1] 24/17
Klayman [39]
knee [2] 38/9 38/10
Knight [2] 2/9 33/5
knives [1] 36/7
know [35]
knowing [1] 28/3
knowledge [3] 20/16
24/6 26/8
knows [3] 8/25 26/11
43/20
L
laid [1] 42/14
Lambert [1] 42/24
language [1] 40/3
Larry [3] 2/2 3/14 16/20
last [4] 3/18 13/24 17/10
27/3
lately [1] 5/7
laughing [1] 42/19
Laura [2] 2/5 5/4
law [3] 2/3 27/22 33/1
lawsuit [1] 31/14
lawsuits [1] 20/2
lawyer [1] 27/21
lawyers [1] 33/5
lead [2] 16/12 19/23
least [1] 38/7
leave [1] 6/2
left [1] 43/2
legal [1] 11/5
legally [1] 42/15
legitimate [1] 14/8
let [6] 15/3 16/5 20/25
34/23 36/22 40/4
let's [7] 3/11 15/6 18/14
27/5 28/15 37/1 41/4
letter [19]
letters [1] 37/3
liability [1] 11/3
lightly [1] 16/18
likely [1] 32/15
limited [1] 9/9
line [3] 3/7 14/5 26/6
Listen [1] 43/15
litigation [3] 22/21 29/4
40/22
litigations [1] 21/25
little [1] 43/5
local [2] 36/17 39/15
locate [6] 7/3 7/18 8/11
9/17 11/13 31/11
locating [1] 6/18
location [2] 9/7 29/22
long [2] 24/23 34/12
looked [3] 3/24 15/25
looking [3] 14/12 21/2

21/6
lose [1] 17/16
lot [3] 17/11 20/2 20/3
M
Machiavellian [1] 36/7
Magazine [1] 13/10
magistrate [2] 1/12
17/22
mail [33]
mails [6] 19/18 30/19
31/8 34/16 34/20 37/3
main [1] 18/8
major [1] 37/25
makes [2] 8/20 24/15
making [8] 12/11 13/5
18/23 26/4 27/8 28/7
33/9 38/16
man [1] 11/24
manner [2] 10/1 25/7
manufactured [1] 28/8
Maricopa [1] 23/19
MARRA [1] 1/2
married [1] 4/19
Marshals [1] 24/13
MARTINEZ [3] 3/3
13/3 30/8
massive [6] 7/1 8/20
19/2 30/22 31/4 31/14
material [4] 30/15 31/4
41/9 41/16
materials [7] 22/20
36/13 36/16 37/15 38/1
38/6 42/11
matter [9] 5/14 11/22
12/5 12/8 12/20 16/17
18/11 32/12 45/13
matters [2] 12/14 12/16
maybe [9] 4/18 4/19
17/21 27/2 33/4 33/4
33/5 39/10 39/11
me [31]
mean [10] 12/18 16/21
17/13 17/17 28/9 35/1
35/25 39/2 40/8 42/19
meaning [1] 26/17
means [3] 7/2 36/17
44/15
meant [1] 13/14
meantime [1] 15/16
meet [2] 7/25 8/8
meeting [1] 11/25
memo [1] 23/22
memoranda [2] 23/4
32/13
memorandum [4] 10/11
33/1 33/11 33/14
memorialized [1] 21/13
memorializing [1] 38/21
memos [1] 37/4
mentioned [4] 21/4
22/11 22/22 23/16
mere [1] 44/12
merely [1] 39/25
Merit [1] 45/10
Miami [4] 1/7 2/4 2/10
Micah [1] 2/5

Micha [1] 5/4
might [1] 44/13
mild [1] 32/8
million [8] 6/23 6/23
10/21 12/18 23/9 31/5
31/5 31/14
minimize [1] 36/11
minimum [1] 10/8
minute [1] 20/24
minutes [1] 15/22
missed [1] 3/9
missing [1] 12/20
misspeak [1] 16/2
misspoke [1] 16/4
mix [2] 16/21 22/23
modern [1] 24/9
Monday [4] 9/6 9/15
30/2 33/18
Mont [1] 23/15
MONTGOMERY [37]
Montgomery's [4] 20/9
30/14 30/25 33/12
month [1] 9/2
months [2] 4/25 4/25
moot [1] 14/13
most [7] 6/3 6/16 20/4
31/9 31/9 31/10 32/15
motion [25]
motivation [1] 35/24
moving [3] 12/21 15/3
15/7
Mr. [110]
Mr. Baker [7] 6/14 6/23
7/1 7/5 10/24 25/18
27/25
Mr. Baker's [8] 7/13
9/11 11/24 21/7 21/18
21/21 22/17 30/21
Mr. Clayman [1] 37/2
Mr. Drake's [1] 24/6
Mr. Ickes [1] 35/9
Mr. Klayman [35]
Mr. Mont [1] 23/15
Mr. Montgomery [30]
Mr. Montgomery's [4]
20/9 30/14 30/25 33/12
Mr. Risen [4] 13/10
13/12 17/3 18/12
Mr. Schwartz [13] 8/3
9/12 11/16 20/16 21/20
26/7 26/17 27/15 27/18
30/3 31/1 34/17 38/11
Mr. Schwartz's [2]
25/13 28/20
Mr. Ted [1] 28/16
Mr. Toth [1] 33/4
Mr. Weebie's [1] 24/5
Mrs. [2] 35/5 42/19
Mrs. Clinton [1] 35/5
Mrs. Handman [1]
42/19
Ms. [29]
Ms. Curtis [3] 22/22
30/13 30/14
Ms. Handman [23]
Ms. Handman's [1]
Ms. James [1] 12/4

Ms. Klayman [1] 38/12
much [5] 18/12 18/22
18/23 27/2 36/9
must [4] 16/8 21/25 29/4
31/16
myself [4] 12/3 16/1
25/18 37/16
N
naive [1] 32/1
name [4] 7/7 14/2 17/10
25/13
national [5] 14/25 16/16
19/12 34/5 35/18
nature [1] 39/11
necessary [4] 8/11 15/7
15/9 33/16
need [10] 4/24 9/2 12/6
15/12 22/3 29/8 30/9
33/11 38/9 39/12
needed [1] 7/5
needs [1] 34/21
neither [2] 22/18 26/2
network [2] 24/4 24/9
Nevada [1] 23/4
never [12] 4/19 11/17
13/12 15/25 17/23 18/15
18/16 18/16 20/18 23/10
27/18 32/24
news [2] 12/15 13/11
newspaper [1] 17/7
next [3] 30/10 30/24
44/19
nice [2] 25/23 27/12
night [1] 3/19
nilly [3] 11/3 28/1 36/11
no [27]
noise [1] 3/6
nonclassified [1] 6/6
none [2] 24/6 45/6
Notably [1] 6/17
note [1] 13/13
noted [1] 18/6
nothing [2] 26/19 36/25
notice [2] 10/19 30/2
notion [1] 40/17
notwithstanding [1]
32/16
November [1] 23/23
November 13th [1]
23/23
NSA [2] 23/21 24/17
number [3] 7/6 33/10
33/10
NW [1] 2/6
O
oath [1] 20/22
Obama [3] 35/4 35/14
43/13
objected [1] 30/6
objection [14] 8/5 12/25
13/18 14/8 14/8 14/14
15/16 17/19 19/11 22/8
22/14 26/6 26/21 29/13
objection's [1] 15/19
obligation [1] 22/19

observation [2] 31/24
35/21
observe [1] 42/7
observed [1] 8/19
obtain [1] 21/6
obviously [9] 12/17
13/14 18/2 33/9 33/11
39/4 40/2 41/6 41/17
occasion [1] 26/3
October [16]
October 1 [3] 9/12 22/6
29/11
October 1st [2] 8/1
30/19
October 26 [2] 9/20
31/21
October 26th [1] 32/1
October 5 [1] 7/22
30/3
30/4
October 7th [1] 8/8
off [1] 3/11
office [3] 12/1 23/19
23/21
officer [3] 20/8 27/22
42/7
Official [1] 1/16
oh [5] 4/7 4/9 4/16 26/15
43/11
okay [15] 5/2 16/5 18/1
20/14 20/21 26/13 27/1
27/16 29/1 35/3 36/23
38/13 43/4 43/7 43/13
on-the-street [1] 3/23
one [19]
ones [1] 22/10
ongoing [2] 11/11 14/16
only [9] 6/14 8/16 17/10
22/14 22/24 24/16 25/7
37/4 37/6
operative [1] 36/2
opinions [1] 17/4
opportunity [4] 12/24
20/15 33/14 36/12
opposing [3] 41/11
41/14 42/10
opposite [1] 26/15
oral [2] 19/4 45/3
orally [1] 16/20
order [33]
ordered [6] 6/4 7/14 9/8
10/18 34/3 43/1
orders [1] 14/23
orientation [1] 44/17
others [2] 37/20 37/21
otherwise [1] 24/7
our [11] 7/25 8/22 9/2
10/10 12/25 15/2 23/3
24/16 25/8 25/9 26/5
outlined [1] 25/10
outright [1] 24/10
over [20]
overstated [1] 39/11
own [3] 8/16 9/25 34/7
50

protect [2] 34/13 41/17 recess [1] 44/20
41/23
return [1] 9/23
P
53
page [4] 1/15 23/22 37/8
37/8
page-by-page [1] 37/8
pages [7] 6/24 10/21
12/18 12/19 31/5 37/7
37/21
paid [1] 23/19
paint [1] 17/21
Palm [1] 1/17
paper [2] 37/2 37/5
paragraph [5] 5/18 6/4
7/14 9/8 29/19
paragraph 5 [4] 5/18
7/14 9/8 29/19
paragraph 6 [1] 6/4
paralegal [1] 12/4
parameters [1] 26/3
paren [1] 6/7
parte [2] 40/14 41/8
participated [1] 15/4
particular [3] 18/6 31/1
41/15
particularly [2] 4/24
11/21
parties [3] 40/10 40/22
41/21
party [2] 23/6 41/11
past [1] 28/9
Pay [1] 17/5
pending [2] 6/15 19/11
Pennsylvania [1] 2/6
people [3] 20/3 37/25
41/1
perceive [1] 36/6
perfectly [1] 38/13
perhaps [2] 16/2 38/1
period [1] 42/23
permission [1] 34/14
permit [2] 10/1 36/16
perpetrated [1] 24/11
person [3] 12/16 19/23
24/11
personal [2] 35/1 35/2
personally [1] 39/16
perspective [1] 35/23
persuaded [1] 18/5
phone [3] 3/13 5/3 33/10
phonetic [1] 24/5
phrase [1] 36/11
pieces [2] 37/2 37/5
pinpoint [2] 31/3 31/13
place [2] 41/19 42/8
PLAINTIFF [13] 1/4
2/2 3/12 6/5 6/24 7/4
7/11 8/21 9/6 9/23 18/8
29/20 29/20
Plaintiff's [4] 6/10 6/13
8/7 9/24
Plaintiffs [1] 6/20
plan [1] 6/1
Playboy [1] 13/10
please [5] 7/12 28/17
28/23 28/25 30/1
plot [1] 14/10
point [7] 12/9 17/1
22/16 24/14 27/7 36/19
protected [1] 41/5

political [1] 36/2
protective [2] 41/19
politically [1] 35/11
42/6
position [1] 42/9
protocol [1] 38/18
possibility [1] 39/13
prove [2] 18/9 18/9
possible [1] 44/8
possibly [3] 14/24 19/24 provide [14] 7/3 7/12
8/3 8/23 9/15 9/17 9/19
42/2
9/25 21/23 22/3 29/2
post [1] 5/18
29/8 42/3 44/2
post-hearing [1] 5/18
provided [9] 7/11 7/19
potentially [5] 14/14
16/12 19/12 20/5 44/13 8/12 10/3 10/21 11/12
12/2 19/19 23/22
practical [1] 31/23
providing [5] 8/5 8/20
preclude [1] 42/10
predicted [2] 13/7 17/25 22/9 29/14 44/6
provision [1] 9/22
prefer [2] 20/3 44/12
provisional [1] 37/18
prehearing [1] 10/11
prejudice [5] 10/2 10/6 public [11] 13/11 15/14
16/15 17/7 21/19 35/16
32/10 32/23 36/3
39/4 40/10 40/18 41/21
premise [1] 13/9
present [3] 2/8 7/7 12/4 42/11
publication [1] 17/5
presentation [2] 37/7
publications [1] 13/10
37/22
published [1] 13/9
presented [1] 25/7
purported [1] 40/1
presiding [1] 3/4
purports [1] 23/16
pressed [1] 38/12
purpose [1] 22/20
presumably [1] 34/18
pursuant [1] 16/11
prevent [1] 26/19
put [6] 10/18 12/9 12/10
Price [1] 17/5
13/18 17/12 21/19
prior [6] 7/13 8/10
putting [2] 22/24 39/3
13/10 14/3 14/4 17/7
Privacy [5] 22/2 26/13
Q
26/19 29/7 29/9
privilege [4] 11/21 22/15 qualifications [1] 14/4
question [1] 20/25
41/16 42/6
questions [3] 15/21
privileged [1] 41/10
33/21 43/18
privy [1] 11/25
probably [4] 8/25 33/15 quite [2] 18/11 18/22
quote [8] 5/23 6/5 7/1
33/18 38/15
8/1 8/5 20/2 23/25 44/14
problem [2] 25/9 25/9
quotes [1] 21/16
procedure [3] 37/24
quoting [3] 6/11 6/17
38/3 42/15
40/3
procedures [1] 39/16
proceed [1] 16/22
R
proceeding [2] 12/21
ranking [1] 38/11
23/24
rational [1] 38/6
proceedings [3] 1/10
rationale [1] 40/1
44/24 45/12
process [4] 21/16 34/11 Ratner [2] 2/5 5/5
reaction [2] 38/10 38/11
41/20 42/5
Read [2] 28/23 28/25
processing [1] 24/9
produce [7] 6/8 9/6 23/7 realistic [1] 31/24
realize [3] 30/6 30/7
25/2 31/22 31/25 34/4
produced [6] 7/14 7/17 31/7
really [7] 4/7 18/11
13/2 25/3 32/16 41/19
producing [4] 6/19 14/2 31/12 32/10 32/11 41/20
42/5
30/11 34/3
product [4] 11/14 14/18 Realtime [1] 45/11
reason [3] 12/6 32/2
41/5 41/7
34/21
production [7] 10/1
reasonable [3] 7/2 38/6
21/12 22/4 23/12 29/9
42/14
29/20 29/24
reasons [4] 14/21 32/2
proffer [1] 21/10
34/6 44/15
profile [1] 12/20
recall [2] 5/21 15/23
project [2] 33/3 33/7
receive [1] 11/5
promptly [1] 25/3
received [2] 6/16 28/7
proof [1] 18/20
recently [2] 5/24 23/23
prosecutor [1] 11/20
reckless [1] 18/17

recommendation [1]
32/14
record [6] 12/3 13/12
35/16 39/3 40/17 45/12
recordings [1] 24/3
records [1] 21/19
red [1] 13/19
reference [5] 4/13 4/20
21/1 35/6 42/20
referenced [5] 7/13 9/10
21/7 21/17 21/18
references [1] 29/16
referring [1] 23/18
regard [8] 11/25 12/22
13/21 14/3 20/23 26/7
31/8 34/24
regarding [1] 9/7
Registered [1] 45/10
regularly [1] 37/25
regulations [4] 8/4 22/1
26/18 29/5
reinstatement [1] 23/11
related [1] 29/23
relation [1] 6/7
relationship [1] 27/23
relatively [1] 44/11
relevant [1] 21/11
relied [2] 13/12 17/24
remain [1] 37/18
remains [1] 41/10
remarkable [1] 24/15
remind [1] 23/2
report [1] 32/14
Reporter [4] 1/16 1/16
45/10 45/11
representations [1]
21/10
request [19]
requested [3] 7/11 7/18
15/8
requests [2] 21/24 29/3
require [1] 13/2
required [3] 8/14 9/16
12/6
requirements [3] 9/21
26/19 42/8
requires [1] 10/13
requiring [2] 32/17 36/1
research [1] 33/15
resources [1] 12/17
respect [5] 11/20 13/1
14/22 14/22 15/10
respectfully [2] 9/5
15/15
respond [3] 25/22 33/14
39/2
responded [2] 8/1 28/19
response [7] 8/13 9/12
22/7 28/20 29/12 30/4
33/12
rested [1] 17/2
restriction [1] 39/4
result [2] 14/25 34/9
resulted [2] 23/9 24/8
retrieval [2] 10/1 21/16
retrieve [2] 8/21 8/23
reveals [1] 24/6

revelations [1] 5/21
review [15] 10/25 12/13
13/25 15/17 19/10 22/20
23/22 33/12 36/13 37/15
39/2 39/10 40/14 40/14
42/12
reviewed [3] 20/7 20/12
24/14
reviewing [1] 42/11
revolving [1] 12/7
right [13] 3/17 4/3 4/14
5/6 5/9 5/12 6/6 15/2
26/4 27/6 28/13 29/25
40/5
RISEN [9] 1/6 3/3 6/19
13/10 13/12 17/3 17/18
18/12 34/9
RMR [2] 1/16 45/17
room [1] 43/2
routine [1] 32/12
rule [6] 5/19 10/4 17/22
25/10 36/17 39/15
ruled [3] 14/10 15/16
39/5
rules [3] 14/2 15/9 15/10
ruling [7] 30/6 33/8 33/9
37/20 41/13 43/18 44/18
rulings [4] 33/19 33/21
33/23 38/21
run [3] 14/8 15/3 26/5
S
safety [1] 34/6
sake [3] 18/14 35/22
37/1
same [3] 7/12 41/20 42/5
sanction [2] 23/8 32/9
sanctioned [1] 23/8
sanctions [5] 5/17 5/19
10/3 25/10 32/7
Sandy [1] 5/10
Sanford [1] 2/8
satisfied [1] 9/21
say [10] 5/15 6/14 10/17
15/22 21/15 29/18 37/1
38/13 39/10 41/4
saying [10] 13/1 13/3
16/1 16/6 16/10 19/23
26/25 34/18 35/21 40/5
says [9] 21/9 22/18 26/8
26/9 26/14 26/14 26/15
27/11 41/25
scandals [1] 42/23
Schwartz [17]
Schwartz's [2] 25/13
28/20
seal [45]
sealed [1] 39/5
sealing [3] 39/17 40/23
42/7
second [3] 12/2 39/10
43/22
Secondly [2] 10/23 26/7
secretly [1] 5/24
security [8] 14/25 16/16
19/13 34/6 35/18 41/25
51

subpoena [1] 8/4
situation [1] 17/13
23/21
things [8] 12/13 24/2
S
53
security... [2] 42/3 42/4
seeing [1] 41/18
seek [3] 5/19 22/10
29/15
seeking [3] 6/2 32/8
40/13
seem [2] 15/23 36/4
seems [1] 23/13
seen [6] 18/16 19/15
19/18 19/20 19/22 38/10
seized [1] 24/12
self [1] 6/5
self-described [1] 6/5
sell [1] 13/14
sending [1] 31/1
sends [1] 31/9
sensitive [10] 4/24 19/25
20/1 20/3 36/10 38/8
38/17 39/11 39/24 44/14
sent [10] 7/24 19/16
19/21 22/5 22/7 29/10
29/12 30/20 31/16 31/18
September [12] 6/5 6/9
6/12 7/10 7/17 7/24 9/11
10/24 21/8 22/8 29/13
30/18
September 21st [1] 7/10
September 24 [4] 7/24
9/11 22/8 29/13
September 24th [1]
30/18
September 4 [3] 6/5 6/9
7/17
September 8th [3] 6/12
10/24 21/8
seq [1] 29/5
sequester [1] 6/2
serious [1] 43/7
seriously [1] 32/21
serve [3] 39/21 43/24
44/4
set [2] 31/2 31/10
setting [1] 18/24
seven [1] 37/3
several [1] 37/25
SFranklinUSDC [1]
1/18
shall [2] 29/20 31/15
share [2] 43/9 44/2
sharpening [1] 36/7
sheriff's [2] 23/19 23/21
should [6] 14/7 17/22
26/5 33/15 40/17 42/10
show [1] 3/19
shown [1] 41/3
sic [2] 38/13 44/13
side [3] 41/3 41/7 41/18
significant [4] 12/15
16/17 32/2 44/10
significantly [1] 3/24
similar [3] 3/25 3/25
23/18
simply [4] 17/6 20/6
32/19 33/9
since [2] 8/18 16/11
sir [1] 25/21
subsequent [1] 9/13

slam [1] 38/2
subsequently [1] 24/12
sleep [1] 27/2
substantial [1] 32/22
smear [1] 34/10
such [8] 7/21 11/13
Snow [2] 23/24 24/13
13/25 16/7 25/7 26/1
so-called [1] 23/15
27/17 38/2
software [73]
sufficient [1] 44/15
somebody [1] 41/4
suggestion [2] 33/2 33/6
somehow [1] 36/3
someone [2] 30/9 38/14 suit [1] 24/18
Suite [3] 2/3 2/7 2/9
something [5] 4/14
15/10 17/23 36/15 40/21 summarizing [1] 33/18
summary [1] 24/4
sometimes [1] 3/22
Sunset [1] 4/1
soon [1] 19/8
supplement [1] 10/12
sooner [3] 17/11 33/7
supply [1] 25/1
33/8
supporting [1] 33/1
sorry [2] 32/6 43/15
supports [2] 13/23 24/7
sort [2] 31/23 39/7
supposed [1] 7/16
sought [1] 22/15
sure [4] 31/9 33/13
sound [1] 44/11
34/25 34/25
sounds [1] 44/10
surprise [1] 3/23
source [1] 13/13
sources [2] 13/12 15/14 suspect [1] 38/17
suspicion [1] 38/7
SOUTHERN [1] 1/1
swear [1] 20/22
speaking [1] 3/25
specific [9] 7/4 8/18 21/5
31/10 31/25 32/25 33/18 T
tactic [1] 17/12
33/21 34/19
tails [1] 17/16
specifically [2] 22/17
take [8] 13/4 25/25
23/4
28/15 36/13 38/6 40/15
specified [1] 7/5
42/18 44/21
speculated [1] 18/15
taken [3] 16/18 37/17
speculation [1] 20/6
37/18
speed [2] 12/21 15/7
talking [2] 30/17 34/16
spoken [1] 18/16
spoliation [2] 8/22 32/10 technically [1] 14/18
Ted [6] 7/22 25/14 25/15
stage [1] 17/1
25/16 28/7 28/16
stance [1] 15/2
start [3] 3/11 14/1 33/15 telephone [3] 2/3 2/5
32/19
started [3] 33/2 34/11
television [3] 3/18 5/6
42/19
24/3
starting [1] 3/9
tell [7] 15/13 20/8 22/5
state [1] 31/15
29/10 31/12 34/23 42/19
statement [1] 18/19
tells [1] 26/9
STATES [4] 1/1 1/12
terms [3] 11/12 17/7
14/16 16/16
34/3
stay [3] 5/23 30/7 30/8
test [1] 9/3
step [1] 28/15
Stephen [4] 1/16 45/10 testified [1] 17/19
testimony [5] 13/11
45/16 45/17
13/15 14/4 17/8 25/23
still [1] 18/20
Thank [4] 5/16 10/14
stored [1] 19/3
44/22 44/23
story [2] 23/18 24/23
that's [34]
strategic [1] 13/6
themselves [1] 17/2
strategy [2] 6/1 17/12
street [3] 1/17 3/22 3/23 theory [2] 32/10 41/12
there's [8] 3/21 21/15
stretched [1] 12/17
26/10 32/1 33/20 36/9
strike [1] 34/19
38/20 40/21
stroke [2] 15/5 19/9
therefore [5] 17/4 30/8
stuff [1] 27/4
subject [11] 6/7 8/4 8/17 32/5 32/18 39/20
11/14 29/18 29/24 39/3 they're [7] 12/21 13/5
15/6 15/11 26/4 41/6
41/7 41/19 42/2 42/12
44/14
submission [3] 41/2
they've [1] 22/15
41/10 44/8
thin [1] 12/17
submissions [1] 39/19
thing [3] 13/23 35/13
submit [1] 37/13
38/24
submitting [1] 41/6
24/2 26/9 28/1 28/10

35/9 40/9
think [18]
those [12] 14/13 16/13
19/3 21/17 22/10 24/16
26/2 37/4 37/15 38/14
44/3 44/15
though [3] 8/14 31/24
38/10
thought [2] 39/11 43/17
thoughts [1] 43/22
threaten [1] 36/3
threatened [1] 34/7
three [2] 7/7 37/3
through [1] 27/25
throughout [1] 6/25
Thursday [1] 31/19
timely [2] 10/1 32/16
times [2] 38/3 38/4
today [4] 3/16 5/17
18/25 30/17
told [9] 12/5 18/24 20/19
22/13 23/18 24/23 27/18
44/5 44/9
Tom [1] 24/17
too [2] 13/4 14/6
took [1] 14/10
total [1] 24/1
totaling [1] 31/5
Toth [1] 33/4
Touhy [6] 8/4 22/1
26/10 26/11 26/18 29/5
track [2] 19/1 19/17
transcript [2] 1/10
45/12
Tremaine [1] 2/6
true [5] 13/20 18/2
18/19 28/3 35/25
try [10] 13/22 17/14
18/1 19/1 26/3 30/21
30/22 35/12 35/16 37/6
trying [7] 11/13 13/20
13/21 34/10 34/10 35/10
41/17
Tuesday [2] 30/10 30/10
turn [12] 11/2 14/11
14/23 17/23 20/4 20/19
26/10 26/15 26/18 26/21
28/1 29/21
turned [4] 5/24 31/6
31/14 42/17
turning [2] 6/7 30/14
turns [1] 18/18
twice [1] 42/21
two [15] 6/21 7/7 15/22
22/11 23/21 23/22 24/17
26/8 32/20 33/10 37/4
37/4 37/7 37/12 44/6
two-page [1] 23/22
type [1] 36/1
typically [2] 32/13 44/15
unable [2] 21/23 29/2

under [49]
under-seal [19]
understand [3] 5/13
26/24 40/5
understanding [1] 40/20
understands [1] 44/18
understood [1] 22/19
undertake [1] 22/18
underway [2] 33/7
33/16
undoubtedly [1] 16/15
unduly [1] 33/17
unequivocally [1] 20/9
unfairly [1] 36/3
Unfortunately [1] 25/23
unique [1] 37/24
UNITED [4] 1/1 1/12
14/16 16/16
Unless [1] 40/13
unseal [3] 37/20 37/22
39/1
unsealed [3] 38/4 40/23
41/14
until [2] 39/5 40/23
upon [2] 15/16 21/9
us [10] 7/12 8/6 14/1
17/10 17/12 19/19 22/3
23/13 28/2 29/8
V
value [1] 27/23
variety [1] 32/12
various [1] 30/15
versus [1] 3/3
very [15] 5/11 11/24
12/13 12/15 12/20 12/24
16/17 23/18 35/4 35/4
35/10 35/11 36/6 42/14
43/14
vest [1] 11/19
view [2] 8/22 38/6
violation [2] 14/2 32/10
volume [1] 24/3
wait [1] 27/13

waiver [2] 22/3 29/8
want [11] 14/6 28/4 30/2
31/8 32/21 33/13 34/5
36/10 43/8 43/21 43/22
wanted [1] 20/15
Washington [1] 2/7
wasn't [3] 4/24 27/7
28/2
Watch [1] 35/9
ways [1] 37/12
we'd [2] 9/14 9/19
we're [15] 3/9 5/13 5/17
13/1 13/3 13/3 16/22
17/20 24/25 24/25 25/10
34/16 38/13 40/19 43/5
U
we've [2] 3/8 30/16
U.S [3] 12/1 16/19 24/13 Wednesday [2] 30/24
31/16
U.S.C [1] 29/7
Weebie [1] 24/17
ultimate [1] 32/9
Weebie's [1] 24/5
ultimately [2] 23/9
52

43/23 43/24
W
53
you're [16]
weekend [1] 44/21
you've [5] 18/3 18/21
weeks [2] 4/23 27/3
20/11 39/5 44/9
welfare [1] 34/6
yourself [2] 27/10 36/13
well [18]
went [3] 12/19 13/1 15/5
West [1] 1/17
what's [4] 14/13 16/13
28/17 44/19
whatever [4] 22/25 32/2
33/15 44/14
whenever [1] 4/23
where [8] 20/10 29/16
29/18 34/18 37/25 41/1
41/2 41/21
whereby [1] 11/9
whether [20]
while [3] 4/6 19/10
40/19
whistleblower [3] 23/17
24/18 24/22
who's [2] 34/7 38/11
whoa [2] 27/13 27/13
why [10] 6/20 11/1
14/20 16/17 16/25 19/24
25/10 25/18 42/1 42/24
wife [2] 4/14 4/21
wildly [1] 18/15
willy [3] 11/3 28/1 36/11
willy-nilly [3] 11/3 28/1
36/11
win [1] 17/16
wish [1] 44/20
withheld [1] 15/19
without [7] 5/25 5/25
6/1 6/2 13/2 32/13 42/4
witness [3] 14/19 19/14
25/24
witnesses [1] 42/23
won't [3] 28/12 39/4
40/16
words [3] 35/23 37/1
39/8
work [10] 10/8 10/9
11/14 14/18 18/15 18/18
18/19 27/22 41/5 41/6
worked [1] 32/24
works [1] 9/3
worthy [1] 37/5
Wright [1] 2/6
writing [4] 12/9 19/4
19/6 38/12
written [9] 19/20 21/2
31/15 32/25 33/14 33/17
33/25 34/1 38/20
wrote [6] 6/10 6/13
17/24 18/17 28/18 34/9
Y
yeah [3] 4/8 4/22 16/4
year [2] 24/19 34/12
years [1] 34/11
yes [10] 3/14 4/11 4/12
10/16 25/21 26/12 28/22
40/18 40/19 41/22
yet [1] 15/9
you'll [4] 37/8 43/23
EXHIBIT 2
CASE NO. 2:07-cv-02513-GMS

Manuel de Jesus Ortega Melendres, et al.
VS. Joseph M. Arpaio, et al.
PLAINTIFFS EXHIBIT 2531
DATE:
IDEN.
DATE:
EVID.
BY:
Deputy Clerk
J er~
Sheridan -
SHE~FFX
Ill '
If
U .. i ' '
Brian tv1<.1(kie<.,vi.;;t 5HERIHX

Frld.Jy, NPif(;mh??.t 14. 2014 7:$0 Mv1
.leny Shll:ridan SHfR!fFX
From:
Sent:
To:
Subje,t:
PN: Re!ip<;nse
C~~rtification.cf_E:t."!f~o!Cli'ltk:m..otD.-t;;_l3Nov2014.pdf; All'OOOOJ..hl:m
Atta~hment~:
cr~ :e~,
Th:;:; :..v:~:\?~~=--~ r<:~~;:~~rt fr::>rt: th...:.; ..~ hf:::::~ g.~.::{$ 'f;"-::::rn th:tJ: N$.>":~ :egc::rd~ng tr~~ ~nt:~rrn~Jtk~f: Df?.:-t:~~:) .pn..Y~fc.eu ;_l~ .. lr:ttr~:J$-t ;t:t~ f(;~~ d.
r..:;.~~~=;::.~-r.}F::.: c:..:~.~::-~tr s~-=~~trrr:~ {}ff'~(:::~

?~p:2-:..:l~ l ~n~}<f:~)t~~r:::=:tlcr: Dh.: ;::.~~or:
Thtt~-=~' f'<'t~:r:(~g~:~:n~:~(::-k u : ~;~:!.
S:$fn<.:e:
f:GO.?.~l f.~t(;<r~-S{~
F-rom: Thvrnas Drak~~ tca~Hr.<~;l~~:~1:t~~\f~~h;~f.~l1t~hut~~n~~t:j

Sent: Friday, Nnvel-r1!x!r 14, 2014 6:32 AN
To: ,fkian f''1atk!c:wkz ~ SHERIFFX
Subject~ Rospom:e
Good .n:orningl
Kirk \Vlebe and l arc l~rQviding: y;:.n.t a summary (attached) of ;,mi dala <tnd i.nJon.na!iOI.l a.n.a.lysis <.lf alleg~:d. "key
cint:1"'designed to rrrovt~ th<~ snurce'Oi c~:~e.
i\11 he: i'm~; d\:>1'lt:' 1:~
pro,=
ide- yot1\\ith n.~udi1y <:!v~il.<ll:'<le
li~ts
of ~Jl.:ail iKUresst::$, rw.rm~s, phone ml.tnbGr of bt\Lh
in.dividui1is and busi.nessc(l and ~1lN of framed tl.P informatkn, data and code HUT NO .PROOF OF '\VHENCE
THEY CAME and ~t \'ihok lot of taketi t~:nd ii:ade up d<Jcmn~mts 8-nd anulysis.
~Tom
M ELC198093
0-n tJ .1:->:kn.::~:rnbet -2014, at t3~~0 Nt.Son Cowt -wr~strn~nst~H~ t~1fJ 2.1-153~ . .t Kkk
VViehe end Thotnas A. Dnlks, both former <W<;<ioyees of tile Na.tional Se<':lwity 1'/:}t'lncf,
$n~J
ti#ch havl-ng ~nany -ye$1$ t~f expeflant~ m the nwtt:ef df deta _anafysl:t tz~r inteM~gtMlcB
pmduot.on purposes, met wlth invee(tgMor Mike Z!llb mnd tlntr.tXIVe Bnan Msd\iewk2 '1f
lh<> Mork<>pil CwrJy (itt} Sheriffs (lfflcB tt) examiHl certain dab aff;;ged tn mited
tMrtiill r\lsuiiS of the dm!Kk!s1\ne cdltwtbn o! a iarge vo!ome or Bn<\lil Md telephtme
<;ommtn'!lt~aticns <'lnd oocorrwn: file~ ob!akled ttom Comf111$fd!!IJW(Vii'Drk$ and pfiv'*"
di!l<llm'l:-es of latgetilii nrgan1zat\lfl$ durinti th!\ mld-200tl's frwn a poin! in t!W swe of
Marytmx:L Mr, Zl>lb ;~nd Mr, Mackiewicz have <ili<ltt~d thalme tJala origin<>tB<l with
Dmmls Mont'[?nmery~ a .svbject nf an
on-g~ng .M-aricop~A $~riffs. lr-r~~11_$Hgatlon,
Mr. WiBlm and Mr.. DmkB exaRiined lt<~ cont\mt of <lPP'm~imetBli 45 !ligh-
t;apqdty <:>>:Klrnal computar diiv~Js b ascattNn whclhii> iany of !hi~ dW stor1 on th~
drhhok5 wodd MfiBct or r>thG!WiMl r<NBW opratlol'lS involving ds!'ldt~stine acceM to, aN1
cc!lechon of, favl clala fh~m n-H~jo:r nwt~ork -~k~~s (or $t:1)i ot:ht.i:r soutw) t~*:rrylr~g or ~.:W)ring
11 V(Wic~y ,;.~f nHJrf4;r'tl Pl:lGkBt~bf,isr:;=;d and diij:liai ror:nm=tmh)atit~ng gu1 os ~f?H~B ort~)k;~l-h<:ma ct\ts or- t:~~t~-llir ~~\~tronk::aHY:~ba$~ :accounts bdt;t:!:(iiH-fJ tp AnMth~an uaen::;_
ThfJ ~Mt~w -e_x-r:tmi=n~d :eonslstt <..lf l-iS-ts t.Jl' lhe cornrm,mlcatiohs- OOdress:t$ t)r
compe-nie:.s. iJMt orgafli?..~tkJ~t5 foc..~_tad at vaik::us aodras-set.:; wtthin "th$
Vn~t=*fl:t:.i Stm~~~:;, Tfw ddves 6tso ':onia~n a hlgh vci3HrnB cfll'!CorcHn@-t::~-nt th~~ A~ ~h:a::=e~;}t~
tah?:visb:t'j r~0tv~oi~c f'-l~r, \Vi&b~? ~nd. Mr- Drake. ;e:dsc~ ftAJnd >:and t~x.am:f:n-ed comrnon
fAicnJs.t~H. z)=J.Mratl'f~il s~t~tern -mes., its 1<\~-11 aX> a nutrHJe-r (~f prppfi:eta-ry <&nd open--tio-urcB
ind~vld~f~lt_,
n'H.::l1J...r~di&:
~p_pji~:;)t:i<)'f~ M~$-.
Amonn- thP alkrmBd appHcattons Bxw.nif'}U!:>~t w~~re. thntn pur-ported C t~cde. Whits
aB-SDci:UMd With th~ NEt~'s-TtH-N 1lH.ZE:AD nn(~ TNAJL8-LAZEH Prt)~~r<1ms.
Up<m ~'lnalyt!nn k~-K~ n:)ttnat and ~~vt~J~ts aasocta1wcl with-h:!JS$ -pftrticvtar progr:Jtrt:~ t~n<~
(J!b&r ddm ali&ged:y t:omir<W fmrn dattifed sourcaa, Mr. WklJe mn<l Mr, brahJ
en-e~otmtt.:~-rmj no_n~on\;enHon~l t<(Ktihg kwma1$ J~d c:k.1Stficat!On CB-$ats nl)t resi'ZmtMng
typk~~~l govotn=m*Jnt practice, ~n fact, Jhethree coct~ m~s--\<\-<:e-t~~ aelua~~yfakt~ ~nd 'ffarnod
tQ k>ak !ik(~- Nwl GX1B- but C!'1..Jti~t~ cut-?md-past~~j: from imlpp:c~W of -e~ihs-Nn-g t~,_.~t%} m~JdW up
ff(>r.n ~>bnd~H=d (;ode tmlt$:t r-ra;:Hnes, v}d&.\~ <Jev-llYS prn~~ssit)@ t.""">-de _8:f!d AciivB- X k<"ik~.<P
8nd brtY~vset- c:odi1, Gommf.HitS-_ war$ n~A k~ trw pn~per syrrfa..~ or fok)V"st'Bd s~nndBtt.l
~%.u:n\'r:=z c_Offllt~Pt~Jfl& and Vf'eiT;- (~~0;':116~ m.1d sirnpty-m~nu1:actLH't~i;} W m-ake lhent kx>k rt~~L
For ~~x~~tr:if/0, one ~)f h~t~ fik~~~ h:I'Jd J; l'XJfYiHtf;Mtt_~tf~r:tict1- ~KlH.ng thil: TRAUJ3LA.l-bH progtt1ttl
fk>rn th-u- ~hXlB-2C10 tkne.Jt:r11ne whe-n Tf.-:.AUJ3LJQ:EH. VlB~ ah~rx}om:tti: ui NS/~ ifi ?Ooo_ ~n
~<:1U.eg~~dly
MELC198094
sunvnary, lhese wnoll)' fake files aid nm consist ol acluill sofuwm cadi.! from at1y of the
NSA ;xogwms noied.
Finally, 1'1k Wiebe anti Mr. Orako mmrnined printed rnaiefials allegectl)' wribm by
rAl'lda!s of the I.JS.. Grwemmant in particular the CIA and other organi:n!lkms. Again,
ihere is waa 110 evidt){K:e sugg&stkm or teVillUlfi that thil <,k1curnonts <Jxamlnect c<Jm&
1mm any senaitlvJ~ $(Jtrwe or ware obtained thr<:'Ui.Jhsent.otive access m<)thods Invoking
Bpeciilc sollWBre and relevant mwt<~data that W!l!Jki anabls !tle collection a~t! procosMnp
of nelwork--hBSed or Moret! data.
\ftJ"t! ln- particdar note- th~ complete lm:d<. c:f ra~{ dBta files: (or any O-tl'lfH' SU}J.~H)rHnp
t1Viditnt:tt in tht::J= Mes pn::ni~::h~d)' that woukJ= be-_ sxpecw~o~ if ~W-ct! data h<!td been h~.uvt'.lsted
through earid-estln(1 ,;Jt.:c_ess to d~git~~ il'-iformstio~,
ln ~ummm), tilis h3iter t:l!lrtifkw, that to ti'l best of Mt, Wiebe's and Mr. thak</;;
knoW?ed}]~, mJ.ne cf lhfl datm ex~mlne-Q reve:.a~~ t)r other~~-$$ svpports the oa:~;;sartlon th:o::1t
th0 data ccr:!air>ed on t!W hard dfi~z examined te<~u!ted trom the dard;:mlina zx>Heetion
-and proc~.sslng ofth-odetn dig~t~J-r.=BtwtJrk commw1lcatlons untJ ts. instead~ avldtH1te of
.an outright -and ketduhnt t:on perpetrated on ttte g=ovt~rmnent f:Ct p-emona-1 gain ~~n-d
covo.r.
MELC198095

Montgomery V Risen # 177 - D Resp To K Objection & Req To Stay

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Montgomery V Risen # 177 - D Resp To K Objection & Req To Stay

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Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 1 of 21

UNITED STATES DISTRICT COURT

DEFENDANTS OPPOSITION TO PLAINTIFFS OBJECTION TO

HOLLAND & KNIGHT LLP

DAVIS WRIGHT TREMAINE LLP

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 2 of 21

The Court should overrule Dennis Montgomerys (Montgomery) objection

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 3 of 21

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 4 of 21

Defendants Show Montgomerys Past Cases Find the Software Is Not

On August 4, 2015, Defendants explained in their Pre-Hearing Memorandum to Judge

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 5 of 21

Montgomery Testifies in His August 20 Deposition that He Gave the

Montgomerys Counsel Represents to Judge Goodman in the August 21

On August 21, Judge Goodman held a hearing on the adequacy of Montgomerys

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 6 of 21

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 7 of 21

Montgomery Fails to Comply with the August 31 Deadline

The September 3 Denial of Montgomerys Motion to Stay the Order to

On September 3, 2015, Judge Goodman issued an order denying Montgomerys motion

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 8 of 21

Montgomery Fails to Produce the Software by the September 4 Deadline

On September 4, Montgomery defied Judge Goodmans two orders by failing to produce

The September 8 Revelation of Montgomerys Document Dump on the FBI

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 9 of 21

agreed to establish a procedure to provide Montgomery access to non-classified information if it

The October 16 and 19 Orders Again Require Montgomery to Produce the

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 10 of 21

Montgomerys October 21 Declaration Now Swearing that He Did Not Have

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 11 of 21

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 12 of 21

locate software requested in the Risen litigation. (Id.) (emphasis added).17

Montgomerys Objections and Defendants Motion for Sanctions

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 13 of 21

The Court Should Overrule Plaintiffs Objection Because the Discovery

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 14 of 21

Judge Goodmans Finding that the Software Is Highly Relevant to the

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 15 of 21

Wojnarowicz, 2008 WL 892365, at *2 (E.D.N.Y. Apr. 2, 2008) (Defendants objections to the

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 16 of 21

Montgomerys Belated, Implausible Argument that He Does Not Have

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 17 of 21

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 18 of 21

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 19 of 21

Montgomery Provides No Basis Why Defendants Inability to Provide a Full

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 20 of 21

The Court Should Deny Plaintiffs Request for a Stay

Case 1:15-cv-20782-JEM Document 176 Entered on FLSD Docket 11/12/2015 Page 21 of 21

Case 1:15-cv-20782-JEM Document 176-1 Entered on FLSD Docket 11/12/2015 Page 1 of 53

UNITED STATES DISTRICT COURT

TRANSCRIPT OF DISCOVERY HEARING PROCEEDINGS

BEFORE THE HONORABLE JONATHAN GOODMAN

UNITED STATES MAGISTRATE JUDGE

(On Page 2.)

Stephen W. Franklin, RMR, CRR, CPE

FOR THE PLAINTIFF

Larry E. Klayman, ESQ.

FOR THE DEFENDANTS

Laura R. Handman, ESQ., AND

Sanford L. Bohrer, ESQ.

(Call to the order of the Court.)

THE COURTROOM DEPUTY:

15-20782-CIVIL-MARTINEZ, Montgomery versus Risen, et al.