Montgomery V Risen # 187 - D Opp To Motion To Extend Discovery Deadline

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 1 of 11
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 RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR
EXTENSION OF TIME TO RESET DISCOVERY DEADLINE
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
In his Motion for Extension, 1 Plaintiff, for two reasons, seeks an order extending the
now-expired discovery deadline through December 19, 2015. 2 First, Plaintiff states that such an
extension would provide the FBI more time to determine if the 47 hard drives and 600 million
pages of documents and materials provided to the FBI by Plaintiff secretly and without the
knowledge of Defendants or the Court in August 2015 contain any software which Defendants
have sought in this action. Mot. for Extension 1. Second, Plaintiff states that such an extension
would allow for the adjudication of two motions to compel compliance with non-party
subpoenas that Plaintiff filed in other courts, and, if the motions are granted, for Plaintiff to
obtain any discovery in connection with those subpoenas. See Supp. 12. Plaintiff seeks a onemonth extension of the discovery deadline, but, if Plaintiff gets his way, all other pre-trial and
trial dates [would be left] in place. Mot. for Extension 3.
Defendants oppose the Motion for Extension, and will address each of Plaintiffs reasons
put forth in support thereofand the specific relief that Plaintiff requestsbelow.
I.
The Court Should Not Extend the Discovery Deadline Based on Plaintiffs
Demonstrably False Assertion that the FBI Is Searching for the Software.
The Court should not extend the discovery deadline based on the claim that the FBI is
determining whether any of the software can be found among the massive amount of data that
Plaintiff dumped on the FBI in August 2015. Plaintiffs claim is demonstrably false; by letter, the
FBI recently stated that it is not searching for the software. Further, the software, which is at the
1
Herein, Defendants respond both to Plaintiffs Motion for Extension of Time to Reset
Discovery Deadline, ECF No. 181, and to Plaintiffs Supplement to the Motion for Extension of
Time to Reset Discovery Deadline, ECF No. 182. In citations, Defendants will cite the Motion
for Extension as Mot. for Extension and the Supplement as Supp. In text, however,
Defendants will refer to the Motion for Extension and to the Supplement together as the Motion
for Extension.
2
The discovery deadline is November 19, 2015. See Order of September 10, 2015 (the
Scheduling Order), ECF No. 131.
heart of Plaintiffs case, has been the subject of a long-running dispute that has resulted in
multiple court orders and has culminated in a pending, case-dispositive motion for sanctions. By
seeking to extend discovery based on the software, Plaintiff merely seeks to delay the inevitable:
the dismissal of his case.
As the Court is now well aware, just about everything in this casePlaintiffs allegations
in the operative complaint, discovery disputes, highly unusual communications with highranking governmental officials, a motion for sanctionsconcerns the software. According to the
amended complaint, Defendants allegedly defamed Plaintiff by writing and publishing in a
chapter of the book Pay Any Price: Greed, Power, and Endless War (the Book) that Plaintiff
sought to get rich off the federal government in the postSeptember 11 era by selling bogus
counterterrorism software (the Software). See generally Am. Compl., ECF No. 52. Since June
2015, Defendantsin order to demonstrate that Plaintiff will not be able to show that what
Defendants wrote and published was falsehave requested that the Software be produced. And,
since August 2015, Judge Goodman has repeatedly ordered that the Software be produced.
Plaintiff, however, has not done so. For a thorough account on the many reasons why Plaintiff
has not done so, see Defendants Memorandum of Law in Support of Their Motion for Sanctions
(Mot. for Sanctions) 211, ECF No. 166.
In summary, Plaintiff has not produced the Software solely because of his and his
counsels own choices and actions in this lawsuitand nobody elses. First, Plaintiff did not
produce the Software because he claimed it was irrelevant and classified. See id. 3. Then, after a
motion to compel the production of the Software had been filed, Plaintiff testified at his
deposition that, just the day before he was deposed, he gave his one and only copy of the
Software to the FBIwithout telling Defendants, without telling the Court, and without keeping
a copy for himself. See id. 5. 3 The next day, in response to searching questions by Judge
Goodman, Plaintiffs counsel confirmed Plaintiffs testimony in open court: [The FBI] has the
software, yes. Id. (quoting Disco. Hrg Tr. 7:1 (Aug. 21, 2015)). Subsequently, Judge
Goodman, who found that the Software is highly relevant for the case, entered orders requiring
Plaintiff to use his self-described right of continued access to the Software and to produce it to
Defendants. Id. 67. Plaintiff failed to do so, however. Id. 7.
On September 8, 2015, James A. Baker, the General Counsel of the FBI, wrote a letter to
Plaintiffs counsel about the Software. Id. 8. Among other things, Baker wrote that because
Plaintiff had given to the FBI a massive amount of informationas stated, 47 hard drives
containing over 600 million pages of documentsthe FBI had no reasonable way to locate
and provide the alleged software, absent specific instructions from Plaintiff, and Baker
requested them. Id. 89 (quoting Letter from James A. Baker to Larry Klayman 4 (Sept. 8,
2015)). Judge Goodman then ordered Plaintiff to provide to the FBI those specific instructions to
locate the alleged software. Id. 9.
On October 21, 2015, Plaintiff filed a stunning declaration with the Court:
[U]pon searching my memory, I do not believe that I have had any access to
the subject software, nor did I provide it to the [FBI] when I turned over the
drives .
Id. To seem as though he was at least partially working with Baker and following Judge
Goodmans order, however, Plaintiff also declared that he was providing some additional
Plaintiff claims that he produced his Software as part of his alleged whistleblowing activities,
see Mot. for Extension 12, but his counsel admitted and the FBI confirmed that the Software
has no relevance to the data he gave the FBI as part of his alleged whistleblowing activities, see
Mot. for Sanctions 8. Thus, there was no reason he could not segregate and keep his Software
separate and apart from whatever he produced to the FBI.
4
information (attached) which may allow the FBI to see if the softwarein whole or in part
exists on the drives I turned over to the FBI. Id. 10.
To all concerned, this was a surprising about-face. And, because of it, the FBI, on
October 23, 2015, informed Plaintiffs counsel that the FBI was no longer searching for the
Software. Id. Plaintiff and his counsel have since purported to provide additional information to
locate the Software, always with the caveat if it exists. But the FBI has not informed counsel
that it has changed its position regarding the Software. So, as things stand today, there is no
reason to believe that the FBI is searching for the Software, and Plaintiff has not come forward
with anything suggesting otherwise. See Defs. Reply Mot. for Sanctions 1 & n.1, ECF No. 184.
Plaintiffs first reason to extend the discovery deadlineto allow the FBI more time to search
for the Softwareis no reason at all, because there is no reason to extend the deadline for the
FBI to do something that it has specifically stated it is not doing.
There would still be no basis to extend the discovery deadline even if the FBI were
searching for the Software. A courts scheduling order may be modified only for good cause
and with the judges consent. Fed. R. Civ. P. 16(b)(4). This good cause standard precludes
modification unless the schedule cannot be met despite the diligence of the party seeking the
extension. Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) (quoting Fed. R.
Civ. P. 16 advisory cmt. note). Plaintiffs reason to extend the deadline makes a mockery of the
good-cause standard. Plaintiff claims the deadline cannot be met because the FBI needs more
time to complete its (again, nonexistent) search for the Software. But, even if true, this
predicament is entirely of Plaintiffs own inexplicable and sanctionable making. To be sure, if
instead of committing spoliation by secretly giving his only copy of the Software to the FBI
Plaintiff had produced the Software to Defendants in discovery, then Plaintiff never would have
needed to request that the Court extend the discovery deadline in order to get the Software back.
In short, Plaintiff, from the beginning, could have met the discovery deadline. Instead, in Judge
Goodmans words, Plaintiff choose to sequester what could be the most important evidence in
the entire case. Order Denying Pl.s Mot. to Stay One Para. of a Disco. Order 6, ECF No. 122.
The Court should not permit Plaintiff to commit spoliation and then claim diligence in trying
to make things right. 4
Finally, citing the FBIs nonexistent search for the Software also makes a mockery out of
the careful, reasoned, and repeated orders that Judge Goodman has entered, after considering all
the evidence and arguments, requiring Plaintiff to produce the Software. Plaintiffs failure to
comply with those ordersin addition to his spoliation of the Softwarehas led to the casedispositive motion for sanctions now pending before Judge Goodman. There should no doubt
about this: Plaintiff and his counsel have led Defendants, Judge Goodman, and the FBI on a wild
goose chase, all with the very clear purpose to avoid ever having to produce the Software (thus
exposing that it doesnt work) or to avoid admitting to the world that the Software never, in fact,
existed at all.
II.
The Court Should Not Extend the Discovery Deadline Because of the Motions to
Compel.
In addition to the Software, Plaintiff also states that the discovery deadline should be
extended to allow for the adjudication of two motions to compelthe first filed in the U.S.
District Court for the Central District of California and the second filed in the U.S. District Court
for the Southern District of New York. This, too, provides no reason to extend the deadline.
Further, even if the FBI were to produce the Software to Plaintiff and Plaintiff were to produce
it to Defendants by December 19, Defendants and their expert would have no opportunity to
determine whether it works and to prepare an expert report by the extended discovery deadline
which, it bears mentioning, includes all expert discovery. See Scheduling Order.
6
The first motion to compel can be swiftly disposed of. It concerned Plaintiffs trying to
compel his former lawyer to sit for a deposition and to produce documents. See Ex. 1 to Supp.
Mot. for Extension, ECF No. 182-1. On December 2, 2015, U.S. Magistrate Judge Jay C. Gandhi
denied the motion to compel. See Exhibit A attached hereto: (In Chambers) Order Denying Mot.
to Compel, No. 15-mc-00031-CJC-JCG (C.D. Cal. Dec. 2, 2015), ECF No. 9 (subpoena was not
properly served). There is thus no reason to extend the discovery deadline because of the first
motion to compel.
The second motion to compel concerned Plaintiffs seeking to compel deposition
testimony and documents from non-parties Simon & Schuster, Inc., Priscilla Painton, and Tina
Bennett. Plaintiff claimed that discovery was necessary to uncover what Plaintiff believes to be
information showing that Simon & Schuster decided not to publish an earlier version of the Book
out of fear that the Book contained false and defamatory content about Plaintiff. After opposition
briefs from the non-parties and Defendants (attached hereto collectively as Exhibit B) and a
hearing on December 1, 2015, U.S. District Judge Cote entered an order significantly narrowing
the discovery and requiring the non-parties by December 15 to produce responsive documents, if
any, indicat[ing] whether Simon & Schuster communicated its reasons for its decision not to
publish Pay Any Price to Mr. Risen, Ms. Bennett, or Houghton Mifflin Harcourt, and if such
documents exist, they must be produced to the extent they discuss passages in the book related to
Dennis Montgomery, the time of the publication date, or the organization of the book. Exhibit C
attached hereto: Order, No. 15-mc-00363-P1 (S.D.N.Y. Dec. 1, 2015), ECF No. 35. Judge Cote
directed that the parties agree on possible depositions, if any, and inform her by December 22.
Id.
Defendants understand that Plaintiff and the non-parties will comply with Judge Cotes
order, although Judge Cote specifically stated at the hearing that she understood her order could
be subject to this Courts decision on the pending Motion for Extension. In any event, any
limited information that may be discovered does not require an extension of the discovery
deadline. The better course is for the parties to complete such discrete and limited discovery
served before the November 19 deadline as expeditiously as possible, and then supplement the
record in this case, as necessary. 5
III.
If the Court Grants Plaintiff Relief, the Court Should Extend All Remaining
Deadlines.
Putting to the side the reasons Plaintiff gives for extending the discovery deadline, the
specific relief Plaintiff seeks is unusual and unfair to Defendants and to the Court. Plaintiff asks
to reset the discovery deadline to December 19, 2015, but to leav[e] all other pre-trial and
trial dates in place, since Plaintiff Montgomery could otherwise not make it to any later trial
given his declining health, for which he was recently hospitalized. Mot. for Extension 3.
If the Court is inclined to extend the discovery deadline through December 19, then the
Court should also extend all other deadlines by one month. Unless the Court by December 14
5
Similarly, Defendants are pursuing two discrete avenues of discovery that were noticed and
served before the November 19 discovery deadline. The first concerns Defendants attempts to
serve Istvan Burgyan, Plaintiffs son in law whom Plaintiff listed on his witness list c/o
Plaintiffs counsel. After Plaintiffs counsel refused on October 6 to accept service of a subpoena
to depose Burgyan, Defendants have been forced to try to serve Burgyan with the subpoena,
beginning on October 9. After many attempts owing to Burgyans evading service, Defendants
served Burgyan on November 5. Burgyan objected on November 16. If Burgyan does not agree
to comply, Defendants, on Monday, December 7, will move to compel in the U.S. District Court
for the Western District of Washington, which has jurisdiction over Burgyan. The second
concerns a subpoena served on November 5 by Defendants on the U.S. Department of the Air
Force (the USAF) to obtain documents relevant to this action. The USAF has informed
Defendants that, in accordance with federal law, it is determining whether it may produce the
information requested. If Plaintiff is permitted to complete the New York discovery, Defendants
similarly seek to complete these discrete lines of discovery served before the November 19
discovery deadline.
grants Defendants Motion to Dismiss or Transfer, ECF No. 52, Defendants will be moving for
summary judgment on December 14which is the current summary-judgment deadline. Yet, if
Plaintiff has his way, then Defendants will be forced to move for summary judgment without
having the benefit of any discovery that Plaintiff obtains on or after December 14. The better
course would be to extend the summary-judgment deadline by one monthuntil January 14
which would permit Defendants to file their summary-judgment motion after having considered
all discovery taken in the action. Further, to permit sufficient time for Plaintiff to file his
memorandum of law in opposition to Defendants summary-judgment motion, for Defendants to
file their reply in support thereof, and for the Court properly and fully to consider the motion and
enter an order thereon before the March 21 trial date, all other deadlinesincluding the trial
dateshould be extended by one month, too.
After having pressed for an expedited schedule and opposed any extension, Plaintiff now
is asking for an extension of discovery, but claims the trial date could not be extended by one
month because Plaintiff could die before then. See Mot. for Extension 3. Although Plaintiff states
he is terminally ill and was recently hospitalized, id., Plaintiff has put forth no recent
medical records suggesting that his health is in imminent peril, or that he was recently
hospitalized overnight. Defendants are sympathetic to Plaintiffs medical condition, but there is
no reason to believe that Plaintiff could otherwise not make it to any later trial, as he claims.
Id. 6
Indeed, in August, when Defendants counsel offered in consideration of Plaintiffs health to

take his deposition in Seattle, where he is living, he chose, instead, to fly clear across the country
and insisted the deposition proceed in Miami. See Notice of Supp. Authority Concerning Defs.
Mot. to Dismiss or Transfer 56, ECF No. 119. Surely, he will be able to attend trial one month
later than originally scheduled if the case is not first transferred to D.C. for improper venue or for
a more convenient forum or dismissed for lack of personal jurisdiction or failure to state a claim,
9
IV.
Conclusion.
In sum, the Court should deny the Motion for Extension. If, however, the Court enters an
order extending the discovery deadline through December 19, 2105, then it should also extend by
one month all other remaining deadlines of the Scheduling Order. ECF No. 131.
see Mot. to Dismiss or Transfer, dismissed in accordance with the pending Motion for Sanctions,
or on summary judgment.
10
Dated: December 4, 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
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Telephone: (305) 374-8500
Fax: (305) 789-7799
and
Laura R. Handman (admitted pro hac vice)
Micah J. Ratner (admitted pro hac vice)
micahratner@dwt.com
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants
CERTIFICATE OF SERVICE
I certify that on December 4, 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
11
Case 1:15-cv-20782-JEM Document 187-1 Entered on FLSD Docket 12/04/2015 Page 1 of 2
EXHIBIT A
Case
Case
1:15-cv-20782-JEM
8:15-mc-00031-CJC-JCG
Document
Document
187-1 Entered
9 Filedon
12/01/15
FLSD Docket
Page 12/04/2015
1 of 1 Page Page
ID #:162
2 of 2

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
SA CV 15-MC-0031 CJC (JCGx)
Title
Dennis Montgomery v. Michael Flynn, et al.
Present: The Honorable
Date
December 2, 2015
Jay C. Gandhi, United States Magistrate Judge
Kristee Hopkins
n/a
Deputy Clerk
Court Reporter / Recorder
Tape No.
Attorneys Present for Non-Parties:
Attorneys Present for Defendants:
None
None
Proceedings:
(IN CHAMBERS) ORDER DENYING MOTION TO COMPEL
The Court has reviewed plaintiff Dennis L. Montgomerys notice of motion and expedited
motion to compel compliance with subpoena to Michael Flynn and for award of attorneys fees and
costs, along with the response filed by interested parties James Risen, et al. and Plaintiffs reply. [Dkt.
Nos. 1, 6, 7.]
The motion is DENIED.
In sum, among other things, Judge Burkhardt of the U.S. District for the Southern District of
California already addressed this motion and concluded that the Court is not persuaded that the
subpoena was properly served. See Montgomery v. Risen, Case No. 15-CV-2035-AJB-JLB (S.D. Cal.
Oct. 30, 2015), ECF No. 9. Plaintiff then filed a reconsideration motion, which was denied, and Judge
Burkhardt echoed her earlier findings, including that the Court remains unpersuaded that Plaintiff
effectuated proper service of the subpoena and the record is deficient with respect to whether the fees
and costs for mileage were tendered to Mr. Flynn for 1 day attendance at deposition as required by Rule
45. Id., ECF No. 11. Judge Burkhardt found counsels vague, untimely, and unsworn claims that
any and all witness fees were sent by U.S. Mail do not constitute evidence that the fees and mileage
were tendered as required by Rule 45.
It is so ordered.
cc:
Parties of Record
00
Initials of Preparer
CV-90 (06/04)
CIVIL MINUTES - GENERAL
00
kh
Page 1 of 1
EXHIBIT B
Case 1:15-cv-20782-JEM
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 on
Filed
FLSD
11/19/15
DocketPage
12/04/2015
1 of 31 Page 2 of 78
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- x
:
DENNIS L. MONTGOMERY,
:
:
Plaintiff,
:
:
v.
:
:
SIMON & SCHUSTER,
:
:
and
:
:
PRISCILLA PAINTON,
:
:
and
:
:
TINA BENNETT,
:
:
Defendants.
:
:
-------------------------------------------------------------- x
Civ. Action 15 Misc. 0363
NON-PARTIES SIMON & SCHUSTER, INC. AND PRISCILLA PAINTONS

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF DENNIS
MONTGOMERYS MOTION TO COMPEL AND IN SUPPORT OF NON-PARTIES
SIMON & SCHUSTER, INC. AND PRISCILLA PAINTONS EMERGENT MOTION TO
QUASH
McCUSKER, ANSELMI, ROSEN &

CARVELLI, P.C.
805 Third Avenue, 12th Floor
New York, NY 10022
(212) 308-0070
Attorneys for Non-Parties
Simon & Schuster, Inc. and Priscilla Painton
On the Brief:
Bruce S. Rosen, Esq.
Sarah Fehm Stewart, Esq.
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 on
Filed
FLSD
11/19/15
DocketPage
12/04/2015
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
FACTUAL BACKGROUND ..........................................................................................................4
I.
THE LIBEL ACTION. ............................................................................................4
II.
THE RISEN BOOK. ................................................................................................5
III.
THE SUBPOENAS. ................................................................................................6
IV.
SERVICE OF PROCESS. .......................................................................................6
ARGUMENT ...................................................................................................................................9
I.
LEGAL STANDARD. .............................................................................................9
II.
THE SUBPOENAS WERE NOT PROPERLY SERVED ON S&S AND

MS. PAINTON. .....................................................................................................10
III.
NEW YORKS SHIELD LAW PROVIDES THE S&S NON-PARTIES

ABSOLUTE AND QUALIFIED PROTECTION AGAINST COMPELLED
DISCLOSURE .......................................................................................................13
IV.
PLAINTIFFS REQUESTS ARE FATALLY OVERBROAD AND

NEITHER S&S NOR MS. PAINTON SHOULD BE COMPELLED
TO RESPOND. ......................................................................................................19
V.
THE S&S NON-PARTIES OPPOSE REMOTE CONFERENCING

OF ANY DEPOSITION. .......................................................................................25
CONCLUSION ..............................................................................................................................25
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 on
Filed
FLSD
11/19/15
DocketPage
12/04/2015
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Ackermann v. New York City Dep't of Info. Tech. & Telecommunications,
No. 09 CV 2436 (JBW/LB), 2010 WL 1172625 (E.D.N.Y. Mar. 24, 2010)...........................10
In re Application to Quash Subpoena to Natl Broad. Co.,
79 F.3d 346 (2d Cir.1996)........................................................................................................16
Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas,
262 F.R.D. 293 (S.D.N.Y. 2009) .............................................................................................11
AroChem Int'l, Inc. v. Buirkle,
968 F.2d 266 (2d Cir. 1992).....................................................................................................14
Baker v. Goldman Sachs & Co.,
669 F.3d 105 (2d Cir. 2012)...............................................................................................14, 16
Bower v. Weisman,
669 F.Supp. 602 (S.D.N.Y. 1987) ...........................................................................................14
Cadlerock Joint Venture, L.P. v. Adon Fruits & Vegetables Inc.,
No. 09-CV-2507 RRM RER, 2010 WL 2346283 (E.D.N.Y. Apr. 21, 2010) .........................11
Carey v. Air Cargo Associates, Inc.,
No. 18 MS 302/09-2353, 2011 WL 446654 (S.D.N.Y. Feb. 7, 2011) .....................................13
Celle v. Filipino Reporter Enterprises Inc.,
209 F.3d 163 (2d Cir. 2000).....................................................................................................17
Cohen v. City of New York,
255 F.R.D. 110 (S.D.N.Y. 2008) .......................................................................................10, 20
Collens v. City of New York,
222 F.R.D. 249 (S.D.N.Y. 2004) .............................................................................................19
Cooney v. Barry Sch. of Law,
994 F. Supp. 2d 268 (E.D.N.Y. 2014), appeal dismissed (Mar. 21, 2014) ..............................12
Cordius Trust v. Kummerfeld,
No. 99 CIV. 3200 (DLC), 2000 WL 10268 (S.D.N.Y. Jan. 3, 2000) ......................................11
Don King Prods., Inc. v. Douglas,
131 F.R.D. 421 (S.D.N.Y. 1990) .............................................................................................14
In re Eisinger,
No. 09-10053-PBS, 2011 WL 1458230 (S.D.N.Y. Apr. 12, 2011) .........................................14
ii
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 on
Filed
FLSD
11/19/15
DocketPage
12/04/2015
Fears v. Wilhelmina Model Agency, Inc.,

No. 02 Civ. 4911, 2004 WL 719185 (S.D.N.Y. April 1, 2004) ...............................................10
In re Fitch, Inc.,
330 F.3d 104 (2d Cir. 2003).......................................................................................................9
Gonzales v. Nat'l Broad. Co., Inc.,
194 F.3d 29 (2d Cir.1999)..................................................................................................16, 17
Icon Compliance Servs., LLC v. Port Auth. of New York & New Jersey,
No. 14-CV-4123 RA KNF, 2015 WL 783377 (S.D.N.Y. Feb. 24, 2015) ...............................13
Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487 (1941) .................................................................................................................14
Lugosch v. Congel,
218 F.R.D. 41 (N.D.N.Y. 2003)...............................................................................................19
Macdraw, Inc. v. The CIT Group Equipment Financing, Inc., et al.,
994 F. Supp. 447 (S.D.N.Y. 1997) ............................................................................................2
McMann v. SEC,
87 F.2d 377 (2d Cir.) (L. Hand, J.), cert. denied, 301 U.S. 684 (1937) ...................................24
Montgomery v. Risen, et al.,
Civil Action 15-cv-20782 (S.D. Fla.) ............................................................................4, 14, 17
Night Hawk Ltd. v. Briarpatch Ltd., L.P.,
No. 03 CIV.1382 RWS, 2003 WL 23018833 (S.D.N.Y. Dec. 23, 2003) ................................23
Price Waterhouse LLP v. First Am. Corp.,
182 F.R.D. 56 (S.D.N.Y. 1998) .........................................................................................10, 19
Sec. Inv'r Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC,
496 B.R. 713 (Bankr. S.D.N.Y. 2013) .....................................................................................19
Spina v. Our Lady of Mercy Med. Ctr.,
No. 97 CIV 4661 (RCC), 2001 WL 630481 (S.D.N.Y. June 7, 2001) ....................................19
Stephens v. Am. Home Assur. Co.,
No. 91CIV2898, 1995 WL 230333 (S.D.N.Y. Apr. 17, 1995) ................................................14
In re Sur. Ass'n of Am.,
388 F.2d 412 (2d Cir. 1967).....................................................................................................19
Tube City IMS, LLC v. Anza Capital Partners, LLC,
No. 14 CIV. 1783 PAE, 2014 WL 6361746 (S.D.N.Y. Nov. 14, 2014)............................10, 11
U.S. Bancorp Equip. Fin., Inc. v. Babylon Transit, Inc.,
270 F.R.D. 136 (E.D.N.Y. 2010) ...............................................................................................9
iii
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 on
Filed
FLSD
11/19/15
DocketPage
12/04/2015
United States v. Int'l Bus. Machines Corp.,

83 F.R.D. 97 (S.D.N.Y. 1979) .................................................................................................24
State Cases
In re Am. Broad. Companies, Inc.,
189 Misc.2d 805, 735 N.Y.S.2d 919 (Sup.Ct. 2001) ...............................................................16
In re Application of Steven Emerson,
303 A.D.2d 229 (1st Dept. 2003) ...........................................................................................18
Babcock v. Jackson,
240 N.Y.S.2d 743 (N.Y. 1963) ................................................................................................14
Flynn v. NYP Holdings, Inc.,
235 A.D.2d 907 (3rd Dept. 1997) .....................................................................................17, 18
In re Gibson,
106 A.D.3d 424 (1st Dept. 2013) ...........................................................................................18
IMO American Broadcasting Companies, Inc., 189 Misc.2d 805 (2001) .....................................18
ONeil v. Oakgrove Constr.,
71 N.Y.2d 521 (1988) ..............................................................................................................16
People v. LeGrand,
67 A.D.2d 446, 415 N.Y.S.2d 252 (1979) ...............................................................................15
People v. Wolf,
69 Misc.2d 256, 329 N.Y.S.2d 291 (Sup. Ct.) affd, 39 A.D.2d 864, 333 N.Y.S.2d
299 (1972) ................................................................................................................................15
Premier Staffing Servs. of New York, Inc. v. RDI Enterprises, Inc.,
39 Misc. 3d 978, 962 N.Y.S.2d 891 (Sup. Ct. 2013) ...............................................................12
Strong v. Bi-Lo Wholesalers,
265 A.D.2d 745, 698 N.Y.S.2d 738 (2d Dept 1999) ..............................................................12
In re Subpoena Duces Tecum Served on Bell Commc'ns Research, Inc.,
No. MA-85, 1997 WL 10919 (S.D.N.Y. Jan. 13, 1997) modified, No. M8-85, 1997
WL 16747 (S.D.N.Y. Jan. 17, 1997) .........................................................................................9
State Statutes
District of Columbia Shield Law, D.C. Code 1981, 164701 - 164704 .................................13
Maryland Shield Law, Md. Cts. & Jud. Proc. Code Ann. 9-112(c)(1) .......................................13
N.Y. Civil Rights Law 79-h ................................................................................................ passim
iv
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 on
Filed
FLSD
11/19/15
DocketPage
12/04/2015
Rules
C.P.L.R. 311(a)(1) ......................................................................................................................12
C.P.L.R. 3101(a) .........................................................................................................................16
Fed. R. Civ. P. 4 .............................................................................................................................11
Fed. R. Civ. P. 12(b)(6)................................................................................................................4, 5
Fed. R. Civ. P. 26(b) ................................................................................................................19, 20
Fed. R. Civ. P. 45 ................................................................................................................... passim
Fed. R. Evid. 501 ...........................................................................................................................14
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 on
Filed
FLSD
11/19/15
DocketPage
12/04/2015
INTRODUCTION
Non-parties Simon & Schuster, Inc. (S&S) and Priscilla Painton (collectively, S&S
Non-parties) respectfully submit this opposition to Dennis Montgomerys (Movant or
Plaintiff) motion to compel compliance with two subpoenas duces tecum (the Motion to
Compel), and in support of the S&S Non-parties motion to quash (the Motion to Quash). The
improperly served subpoenas directed to the S&S Non-parties seek testimony and documents
protected by New Yorks Shield Law and the First Amendment, and are significantly overbroad
and burdensome.
Montgomerys subpoenas are part of a libel suit pending in the Southern District of Florida
(the Libel Action) against author and New York Times reporter James Risen and Houghton
Mifflin Harcourt Company (Houghton Mifflin) concerning Mr. Risens 2014 book, Pay Any
Price: Greed, Power and Endless War (Pay Any Price or the Book). Plaintiff claims a discrete
chapter in the Book falsely accuses him of committing what in effect was the biggest hoax in
American history against the U.S. defense establishment following the 9/11 terrorist attacks.
Movant erroneously insists without any proffer of proof that the S&S Non-parties can provide
testimony and documents that are critical and highly relevant to the underlying action
specifically, that S&S refused to publish the Book because it defamed Plaintiff.
S&S originally contracted with Mr. Risen several years ago to publish the Book and Ms.
Painton was assigned as its editor. In 2013, S&S reverted rights to the Book back to Mr. Risen
who sold them to Houghton Mifflin, which published the Book in 2014. Testimony from
Houghton Mifflin clearly stated that S&Ss decision to relinquish rights was due to differences
with Mr. Risen over the manuscripts organization and the timing of its publication as a book.
Despite this testimony, Movant has propounded intrusive, overbroad and burdensome
subpoenas to the S&S Non-parties which at their heart seek information concerning the thought
1
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 on
Filed
FLSD
11/19/15
DocketPage
12/04/2015
processes of those at S&S who agreed to relinquish rights to the Book, in the hopes of discovering
that S&S believed the manuscript defamed Plaintiff. Even if this information existed as proffered
by Movant, it is nowhere near as essential enough to Plaintiffs case so as to subject the S&S Nonparties to the significant expense and undue burden that compliance with the subpoenas would
require. The subpoenas include 23 broadly worded requests seeking any and all documents that
refer or relate to communications, contracts, contract negotiations, payment information,
confidential sources and the internal decision-making of a publisher -- information that goes far
beyond issues in the Libel Action.
Against this backdrop, Plaintiffs Motion to Compel should be denied for at least three
separate reasons. First, the subpoenas were never personally served on the S&S Non-parties,
despite representations to the contrary by a process server for Larry Klayman1, counsel for
Plaintiff.
Affidavits submitted herewith demonstrate conclusively that the process servers
affidavits of service on the S&S Non-parties are erroneous if not purposefully deceitful. Even if
the process servers version of the events were to be believed, Ms. Painton is not authorized to
accept service for S&S, and service on the corporation remains deficient.
Moreover, the
subsequent service by mail without payment of required attendance fees does not satisfy Fed. R.
Civ. P. 45.
1
Although Mr. Klayman is counsel for Plaintiff in the Libel Action, he has had his pro hac vice
privileges revoked in this District after a thorough and unsparing decision by then U.S. District
Court Judge Dennis Chin which requires that a copy of that decision be appended to any such
future application. See Macdraw, Inc. v. The CIT Group Equipment Financing, Inc., et al., 994 F.
Supp. 447 (S.D.N.Y. 1997). While Mr. Klayman has not applied for pro hac vice privileges to
pursue Plaintiffs Motion to Compel, he has been extensively involved in all facets of its
prosecution, including email discussions concerning objections to the subpoenas by the S&S Nonparties and transmittal of the Motion to Compel by email to in-house counsel for the S&S Nonparties. See Declaration of Bruce S. Rosen (Rosen Decl.), Ex. A. Counsel signing this motion,
Raymond Negron, is, upon information and belief, based in New York, but lists himself as
affiliated with Mr. Klaymans law firm out of Washington, D.C. For all intents and purposes, the
S&S Non-parties believe Mr. Negron is acting as a straw man to avoid Mr. Klayman having to
again seek pro hac vice privileges.
2
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
9 of 31 Page 10 of
78
Second, Movants reliance on the Florida Reporters Shield Law is misplaced. The issues
raised by these motions fall squarely within the provisions of New Yorks Shield Law (N.Y. Civil
Rights Law 79-h). As such, much of the testimony and documents sought are either confidential
and therefore afforded absolute privilege from disclosure, or non-confidential testimony and
documents afforded a qualified privilege with a high threshold requiring Movant to show, among
other requirements, that the underlying claim virtually rises or falls with the admission or
exclusion of the evidence sought by the subpoenas. Movant has not made such a showing;
instead, Movant offers nothing more than speculation and conjecture for seeking the subpoenaed
testimony and documents, claiming that it is likely that S&S believed the Book was defamatory of
Plaintiff, and that this information would be critical and relevant, or highly probative to the
Libel Actions prosecution. What S&S knew or believed regarding the manuscript cannot be in
any way relevant (let alone evidence that causes Plaintiffs claim to rise or fall) to whether the
published Book itself contains actionable defamation or was published with actual malice by
Houghton Mifflin, central issues in the Libel Action. Not only are we aware of no proffered
evidence from which this Court could even infer that S&S decided to revert publication rights
because of any worries concerning defamation of Plaintiff, but papers filed in the Libel Action
reveal that much of the section of the Book devoted to Plaintiffs story was previously published
in other publications which were not sued for defamation. Moreover, and important to the Shield
Laws requirements, Movant never asked questions related to this supposed core issue during
Defendant Risens deposition. Nevertheless, he now insists on asking these questions of nonparties protected by privilege.
Finally, even if the subpoenas are valid and not protected by privilege in whole or in part,
far from being quite narrow and targeted, the testimony and documents demanded in the
subpoenas would subject the S&S Non-parties to undue burden, expense and inconvenience
3
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
10 of 31 Page 11 of
78
something that courts in the Second Circuit have routinely rejected where the information sought
from the non-parties is of limited, if any, relevance.
For these reasons and others cited below, Movants Motion to Compel should be denied in
its entirety, and the S&S Non-parties Motion to Quash granted.
FACTUAL BACKGROUND
I.
THE LIBEL ACTION.
The subpoenas at issue were issued out of the Southern District of Florida in the underlying
Libel Action entitled Montgomery v. Risen, et al., Civil Action 15-cv-20782 (S.D. Fla.). The
Amended Complaint in the Libel Action seeks $350 million in damages based upon alleged
defamatory statements in Chapter Two of Mr. Risens book Pay Any Price, entitled The Emperor
of the War of Terror. See Movants Ex. 4.2 Plaintiff alleges that the chapter essentially portrays
Plaintiff as a con artist who gained the trust of a U.S. defense establishment desperate for ways to
prevent another terrorist attack post 9/11, and then defrauded them into believing that he had
developed software capable of decrypting Al Qaeda messages allegedly contained in broadcasts
over the Al Jazeera news network. See id. at Ex. A; Movants Br.3 at 3.
Plaintiffs Amended Complaint was filed on or about April 28, 2015. See Docket of Civil
Action 15-cv-20782 (S.D. Fla.), Document No. 44. On May 15, 2015, Defendants filed a second
motion to dismiss under Fed. R. Civ. P. 12(b)(6) or transfer the case to the District of Columbia,
among other relief. See id., Document No. 52. The Hon. Jose E. Martinez, U.S.D.J. reserved
decision on the motion, as well as on another pending motion by Defendants for spoliation
Movants memorandum of law in support of his Motion to Compel attaches numerous unsworn
exhibits, including the Amended Complaint which is attached as Exhibit 4. Movants unsworn
exhibits will hereinafter be referred to as Movants Exs, and the memorandum as Movants
Br.
Movants Br. Refers to Movants Memorandum of Law submitted in support of his Motion to
Compel.
3
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
11 of 31 Page 12 of
78
sanctions, while the case has proceeded with expedited discovery ending on November 19, 2015
and is scheduled for trial in March 2016. See id., Document No. 131.
II.
THE RISEN BOOK.
There is no dispute that: (1) non-party S&S had a contract with Mr. Risen to publish a book
and that Ms. Painton, Vice President and Executive Editor of the S&S imprint, was assigned to
edit Mr. Risens manuscript; and (2) the Book was ultimately published by Houghton Mifflin in
2014 with Bruce Nichols as its editor. Mr. Nichols formerly worked for S&S and was Mr. Risens
editor on a 2006 book published by S&Ss imprint Free Press. As Houghton Mifflins corporate
representative in the Libel Action, Mr. Nichols testified that after Mr. Risen submitted his
manuscript to S&S, he was approached by Mr. Risens agent, Tina Bennett. Subsequently, Mr.
Risen reported to him that his relationship with Simon & Schuster was beginning to break down.
See Movants Ex. 8 at T23:17-18. Mr. Risen further reported that Ms. Painton and S&S did not
see eye to eye [with Mr. Risen] on how to structure and publish the book (id. at T24:2-4), and
they could not see eye to eye on how to structure and when to publish (id. at T25:16-18). Mr.
Nichols also testified that: Pay Any Price is the book they [S&S] had under contract, and they
could not agree with Jim [Mr. Risen] on how to structure it or when to publish it. Thats why Pay
Any Price became available to Houghton Mifflin. Id. at T28:16-20.
Despite this sworn testimony, Plaintiff now incredibly contends that the reason for the
transfer of rights was due to S&Ss alleged belief that Pay Any Price was defamatory and the result
of actual malice a contention that Plaintiff failed to even ask Mr. Nichols or Mr. Risen during
their recent depositions4 and instead, at the 11th hour of discovery, seeks from non-parties
While Mr. Risens deposition is partially sealed, a perusal of the word index for the entire
deposition does not include the words Simon & Schuster, S&S, or Painton. See Rosen
Decl., Ex. B.
5
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
12 of 31 Page 13 of
78
protected by privilege, and without sufficient interest in the litigation so as to be subjected to such
unduly burdensome and expedited discovery.
III.
THE SUBPOENAS.
Movant now seeks unbridled testimony and documents with respect to twenty-three (23)
categories of information, wildly claiming that:
The reasons why Simon and Schuster ultimately did not publish the book are critical and
relevant as the testimony and documents will likely show that Priscilla Painton and Simon
and Schuster rejected publication because it saw and determined that the book was defamatory
toward Mr. Montgomery and/or contained classified government information that could
subject them to civil and criminal liability (Movants Br. at 4) (emphasis added);
This testimony and document production is highly probative because it would go to show
actual malice or bad faith (id.) (emphasis added);
The testimony goes to a core issue of the case (id. at 5) (emphasis added);
One of the principal issues in this case is the question of whether Simon & Schuster and
Priscilla Painton intentionally decided not to publish Defendant James Risens Book because
they perceived it to be a potential liability if not criminal prosecution because of defamatory
statements or illegal use of confidential and/or governmental classified sources (id. at 8); and
Based on information that has come to light during discovery and through the deposition of
Bruce Nichols, there is little doubt that Simon and Schuster and Priscilla Painton decided to
reject Defendant James Risens Book for a good reason, particularly because they had been
Defendant Risens longtime publisher (id. at 8-9) (emphasis added).
These arguments are premised on sheer conjecture, bounded only by the limits of Plaintiffs
and/or his counsels imagination. In response, on November 2, 2015, S&S, through in-house
counsel Andrew Nieh of its parent corporation, CBS Corporation, served objections to the
subpoenas. See Movants Ex. 9. Movant then rejected repeated written requests by Mr. Nieh to
meet and confer as pointless. See Movants Ex. 10; Rosen Decl., Ex. A.
IV.
SERVICE OF PROCESS.
Among the objections raised by the S&S Non-parties was the insufficient service of the
subpoenas on the S&S Non-parties. While Plaintiffs process server swears that he personally
served the subpoenas on Ms. Painton, the initial two affidavits by the process server, identified as
Raymond Hollingsworth (see Movants Ex. 5), claim personal service on a woman in her 50s,
6
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
13 of 31 Page 14 of
78
about 55 in height and weighing approximately 140 pounds with brown hair, and who was
wearing glasses. See id. The process servers initial affidavits further state that the subpoenas
were served at S&Ss office at 1230 Avenue of the Americas in Manhattan, where documents
were left on desk as defendant refused to accept. See id. A supplemental affidavit by Mr.
Hollingsworth submitted after the S&S Non-Parties objected, states that he personally served Ms.
Painton with her subpoena on October 20, 2015 at 11:58 a.m. (see Movants Ex. 6 at 1), she was
physically present (see id. at 2), she turned her back away and walked away after seeing that
she was being served with the Subpoena, (see id. at 3) and he therefore left the Subpoena on
the desk in her presence and told her that she was being served (see id. at 4) (emphasis in
original). The affidavits repeat the same allegations regarding the subpoena purportedly served on
S&S. See id.
However, the affidavits of Ms. Painton and the security guard on duty at the S&S building on
October 20, 2015 firmly establish that the process servers affidavits are false, or at the very least
suspect. For example, while Ms. Painton is a 57-year-old white woman with brown hair, she is far
shorter and skinnier than the process servers description, being only 52 tall and weighing
approximately 114 pounds. See Affidavit of Priscilla Painton (Painton Aff.), attached to Rosen Decl.
as Ex. C, at 6.
She does not ordinarily wear glasses and would not have worn them during the
workday. Id. S&Ss offices are located in a restricted area on upper floors and require visitors to check
in with security personnel in the building lobby on the ground floor. Id. at 5. This reception area does
not contain a desk per se, but a high and long marble slab/metal counter which is attended by a
uniformed security guard (or multiple guards). Id. Ms. Painton remained in her office on the 14th floor
of the S&S building after being called by a security guard for the building, who told her that an
unidentified person wanted to serve her with papers. Id. at 9. She never left her office to meet the
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
14 of 31 Page 15 of
78
process server and no one attempted to personally serve her at any time that day and no one has
attempted to personally serve her since that day. Id.
A security guard on duty at the S&S building reception area on October 20, 2015 reinforces Ms.
Paintons affidavit and further contradicts the process server. Christopher Reyes, an employee of the
building owner, Tishman Speyer, specifically recalls the process server coming to the reception area
after his shift began between 3 p.m. and 4 p.m. -- not around noon as set forth by the process servers
affidavits. See Affidavit of Christopher Reyes (Reyes Aff.), attached to Rosen Decl. as Ex. D, at
1-3. After the process server did not identify himself but said only that he had a subpoena for Ms.
Painton, Mr. Reyes called her office to tell her, she did not come down to accept the subpoena. Id. at
3. When Mr. Reyes got off the phone, he let the process server know Ms. Painton would not be coming
down to the lobby and gave the process server back the envelope containing the subpoenas. Id. at 4.
The process server then left the building, taking the envelope with him, and he did not see the process
server again. Id. at 4-5.
Copies of the subpoenas were also sent to Ms. Painton by regular mail and were received
two days after this purported service on October 22, 2015. See Affidavit of Sophia Jimenez
(Jimenez Aff.), attached to Rosen Decl. as Ex. E, at 2. These mailed subpoenas failed to
simultaneously provide attendance and mileage fees as required by Fed. R. Civ. P. 45(c). See
Movants Ex. 9 at pg. 1; Movants Ex. 10.5
This exhibit contains an email exchange between Mr. Nieh and Mr. Klayman, referencing Mr.
Klaymans attempt to provide these fees immediately after receiving the S&S Non-parties
objection letter, approximately two weeks after purported service of the subpoenas. Movant
chastises Mr. Nieh for asking where to return the fee checks and cleverly suggests, although
Movant does not state affirmatively, that checks were originally provided with the mailed
subpoenas (Movants Br. at 7, fn. 2), yet fails to provide any proof that these checks were actually
provided with the subpoenas. Then he blithely declares that this was a sanctionable obstructionist
tactic.
8
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
15 of 31 Page 16 of
78
Moreover, even if Ms. Painton was personally served, which she was not, she is not an officer,
director, managing or general agent of S&S and she is not authorized to accept service on its behalf nor
authorized to produce corporate property in response to a subpoena. See Painton Aff. at 10.
ARGUMENT
I.
LEGAL STANDARD.
Plaintiffs motion to compel requires that the serving party prove that compliance with its
document request would not impose significant expense or undue burden. In re Subpoena
Duces Tecum Served on Bell Commc'ns Research, Inc., No. MA-85, 1997 WL 10919, at *2
(S.D.N.Y. Jan. 13, 1997) modified, No. M8-85, 1997 WL 16747 (S.D.N.Y. Jan. 17, 1997); see
also Rule 45(d)(1). For a motion to compel to be issued, the subpoena must meet the procedural
requirements set forth by Rule 45. See U.S. Bancorp Equip. Fin., Inc. v. Babylon Transit, Inc.,
270 F.R.D. 136, 139 (E.D.N.Y. 2010) (denying motion to compel compliance with procedurally
invalid and unenforceable subpoenas). Such motions are entrusted to the sound discretion of the
court. See In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003).
The S&S Non-parties may also move to quash the subpoenas under Rule 45(d)(3)(A),
which requires a court to quash or modify same where the subpoena: (1) fails to allow a
reasonable time to comply; (2) requires a person to comply beyond the geographical limits
specified in Rule 45(c); (3) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or (4) subjects a person to undue burden. A subpoena may also
be quashed or modified where it requires disclosing a trade secret or other confidential research,
development, or commercial information; or disclosing an unretained experts opinion or
information that does not describe specific occurrences in dispute and results from the experts
study that was not requested by a party. Fed. R. Civ. P. 45(d)(3)(B).
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
16 of 31 Page 17 of
78
In assessing these considerations, special weight [should be given] to the burden on
non-parties of producing documents to parties involved in litigation. Cohen v. City of New
York, 255 F.R.D. 110, 117 (S.D.N.Y. 2008) (internal quotation and citation omitted) (emphasis
added). [T]he Court should be particularly sensitive to weighing the probative value of the
information sought against the burden of production on [a] nonparty. Id. (quoting Fears v.
Wilhelmina Model Agency, Inc., No. 02 Civ. 4911, 2004 WL 719185, at *1 (S.D.N.Y. April 1,
2004)) (emphasis added). If the information sought from a non-party is of doubtful and
tangential relevance, enforcement of the subpoena would constitute an unreasonable or
burdensome misuse of the discovery process. Ackermann v. New York City Dep't of Info. Tech.
& Telecommunications, No. 09 CV 2436 JBW/LB, 2010 WL 1172625, at *1 (E.D.N.Y. Mar. 24,
2010) (internal quotation and citation omitted). In fact, it is the central goal of Rule 45 to
prevent nonparty witnesses from being subjected to excessive discovery burdens.
Price
Waterhouse LLP v. First Am. Corp., 182 F.R.D. 56, 63 (S.D.N.Y. 1998) (citation omitted).
II.
THE SUBPOENAS WERE NOT PROPERLY SERVED ON S&S AND MS.

PAINTON.
Rule 45 provides that a subpoena must issue from the court where the action is pending,
may be issued and signed by an attorney authorized to practice in the issuing court, and must be
served by delivering a copy to the named person and, if the subpoena requests that persons
attendance, tendering the fees for one days attendance and the mileage allowed by law. See Fed.
R. Civ. P.45(a)(2)-(3) and 45(b)(1).
Significantly, [t]here is no Second Circuit case law interpreting the Rule 45 requirement
of deliver[y] as requiring personal service. Tube City IMS, LLC v. Anza Capital Partners, LLC,
No. 14 CIV. 1783 PAE, 2014 WL 6361746, at *2 (S.D.N.Y. Nov. 14, 2014) (internal quotation
and citation omitted). Rather, district courts in this Circuit have held that, in appropriate
10
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
17 of 31 Page 18 of
78
circumstances, alternative forms of service may be used, as long as they are calculated to provide
timely actual notice. Id. (internal citations omitted). According to this interpretation, however,
alternate methods of service are available only after the [serving party] diligently. . . attempted
to effectuate personal service and presented proof that sufficient notice would be
[given]. Cadlerock Joint Venture, L.P. v. Adon Fruits & Vegetables Inc., No. 09-CV-2507 RRM
RER, 2010 WL 2346283, at *4 (E.D.N.Y. Apr. 21, 2010) (internal quotation and citation omitted)
(emphasis added).
For example, in Cordius Trust v. Kummerfeld, No. 99 CIV. 3200 (DLC), 2000 WL 10268,
at *1-2 (S.D.N.Y. Jan. 3, 2000), this Court allowed for alternative service given the textual
ambiguity of Rule 45 combined with the repeated attempts of the plaintiff to effectuate
personal service. (Emphasis added). In that case, there were repeated actions on the part of the
subpoenaed party to evade multiple attempts at personal service through disingenuous means. As
a result, the Cordius Court crafted an alternative means of service, permitting the plaintiff to serve
the subpoena by certified mail, which it said comports with due process.
In stark contrast, here, there was only a single purported attempt to serve the subpoenas,
the details of which are sharply disputed. Thereafter, the subpoenas were merely sent by regular
mail as opposed to the certified mail permitted by the Cordius Court -- without the attendance
fees required by the Rule. Even though both S&S and Ms. Painton are now aware of these
subpoenas, Movant should nonetheless not be rewarded for his shortcuts, skirting the law, and the
dubious affidavits of his process server.
Even if this Court were to find that service on Ms. Painton was effective in accordance
with the above principles, it cannot find so with regard to service on the corporation, which requires
a different standard. Rule 45 does not specify what constitutes personal service on a corporation
in the United States or in a foreign country. See Aristocrat Leisure Ltd. v. Deutsche Bank Trust
11
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
18 of 31 Page 19 of
78
Co. Americas, 262 F.R.D. 293, 305 (S.D.N.Y. 2009). To fill this gap, courts in this Circuit rely
on the service of process requirements on corporations set out in Federal Rule of Civil Procedure
4 as well as state law. See id.; Cooney v. Barry Sch. of Law, 994 F. Supp. 2d 268, 270 (E.D.N.Y.
2014), appeal dismissed (Mar. 21, 2014). Therefore, to effect proper service on a corporation, the
subpoena must be served upon an officer, director, managing, or general agent C.P.L.R.
311(a)(1).
In addition, New York courts more recently considering this requirement have
concluded that delivery does, in fact, require that the papers be handed to an actual authorized
officer, director or other person set forth in the statute. Premier Staffing Servs. of New York, Inc.
v. RDI Enterprises, Inc., 39 Misc. 3d 978, 980, 962 N.Y.S.2d 891, 892 (Sup. Ct. 2013). Process
under CPLR 311(a)(1) means that the subpoena must be personally delivered to an authorized
person, the mailing of the summons and complaint to defendant was ineffectual. Strong v. Bi-Lo
Wholesalers, 265 A.D.2d 745, 745, 698 N.Y.S.2d 738, 738 (2d Dept 1999). As noted above, Ms.
Painton is neither an officer, director, managing or general agent, nor any other agent authorized
by appointment or by law to receive service of process on behalf of S&S. See Painton Aff. at
10. Accordingly, service on Ms. Painton, whether in person or by mail, cannot and does not
suffice. Further, even if Ms. Painton was authorized, she was not personally served with the
subpoena. See id. at 7-9.
Finally, even if service of the subpoenas themselves was deemed technically correct, Rule
45 still requires that the attendance and mileage fees be tendered at the time of service. As the
accompanying affidavits show, the process server who allegedly attempted personal service never
left the envelope purportedly containing the subpoenas (Reyes Aff. at 4), and the regular mail
delivery of the subpoenas to S&S did not include cash, a check or money order to pay the required
fees (Jimenez Aff. at 3). Movant provides no proof that any fees were paid until more than two
weeks after the purported personal service. While some Courts permit other than personal service
12
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
19 of 31 Page 20 of
78
for subpoenas under certain circumstances, the same cannot be said for the requirement that
attendance and mileage fees be paid simultaneously, which has been interpreted by multiple courts
as adequate grounds to invalidate a subpoena:
The clear language of Rule 45 indicatesand federal courts both inside and outside
of the Second Circuit have heldthat failure to tender the required witness fee and
mileage allowance can serve as an adequate ground for the invalidation of a
subpoena.
Carey v. Air Cargo Associates, Inc., No. 18 MS 302/09-2353, 2011 WL 446654, at *3 (S.D.N.Y.
Feb. 7, 2011) (citations omitted). See also Icon Compliance Servs., LLC v. Port Auth. of New
York & New Jersey, No. 14-CV-4123 RA KNF, 2015 WL 783377, at *2 (S.D.N.Y. Feb. 24, 2015)
(the instant subpoena is also invalid on the ground that the plaintiffs failed to tender the
appropriate fees, as required by Rule 45(b)(1)). Courts around the country uniformly agree with
this interpretation of Rule 45(b)(1), as do the leading treatises on civil procedure.
Thus for the reasons set forth above, service of the subpoenas was insufficient for failure
to provide simultaneous payment of fees as well as failure to provide personal service and/or
certified mail service.
III.
NEW YORKS SHIELD LAW PROVIDES THE S&S NON-PARTIES

ABSOLUTE AND QUALIFIED PROTECTION AGAINST COMPELLED
DISCLOSURE.
The S&S Non-parties have asserted their objections to the intrusive nature of the
subpoenas on the grounds that they seek materials, sources or information related to newsgathering
protected by news reporting or reporters privileges such as New Yorks Shield Law and/or certain
First Amendment protections as set forth by the Second Circuit.6
The S&S Non-parties also asserted in their objections, in the alternative, that they are protected
from compelled questions by the State Constitutions of New York and Florida and/or common law
and statutory privileges. The S&S Non-parties also rely on the Shield Statutes of the District of
Columbia (D.C. Code 1981, 164701 - 164704) and Maryland (Md. Cts. & Jud. Proc. Code
Ann. 9-112(c)(1).
13
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
20 of 31 Page 21 of
78
Since this action is based solely on diversity, the existence and scope of a privilege is
determined by state law. Fed. R. Evid. 501; Don King Prods., Inc. v. Douglas, 131 F.R.D. 421,
423 (S.D.N.Y. 1990); Bower v. Weisman, 669 F.Supp. 602, 603 (S.D.N.Y. 1987), Stephens v.
Am. Home Assur. Co., No. 91CIV2898, 1995 WL 230333, at *6-7 (S.D.N.Y. Apr. 17, 1995). A
federal court sitting in diversity applies the choice-of-law rules of the state in which it sits -- here,
New York -- to determine which states privilege law applies. Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496 (1941); AroChem Int'l, Inc. v. Buirkle, 968 F.2d 266, 26970 (2d Cir.
1992). New York applies an interest analysis. Babcock v. Jackson, 240 N.Y.S.2d 743, 74950
(N.Y. 1963); AroChem, 968 F.2d at 270. Relevant here, because privilege rules are considered
conduct-regulating, New York applies the law of the locus of the conduct at issue. See
Stephens, 1995 WL 230333 at *7 (citations omitted).
As such, because the S&S Non-parties are located in New York and the conduct at issue
by the S&S Non-parties occurred in New York, New York State law should apply. Though
Movant argues that the Florida State law should apply because Movant resides there and Florida
is the nations third largest state in population and has a huge readership (see Movants Br. at
10), such arguments are without any basis in law, and a transparent attempt to gain the benefit of
Floridas weaker Reporters Shield Law. Moreover, upon information and belief, Florida was not
the residence of Plaintiff at the time the Book was written. See Docket of Civil Action 15-cv20782 (S.D. Fla.), Document No. 52 at pg. 7. The S&S Non-parties aver that the choice of law
should focus on the interests of the subpoenaed parties, whose testimony and documents are being
sought in New York, rather than the location of litigation regarding publication of a book with
which they relinquished all publishing rights. See In re Eisinger, No. 09-10053-PBS, 2011 WL
1458230, at *2 (S.D.N.Y. Apr. 12, 2011) aff'd sub nom. Baker v. Goldman Sachs & Co., 669 F.3d
14
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
21 of 31 Page 22 of
78
105 (2d Cir. 2012) (applying New Yorks Shield Law to subpoena on Wall Street Journal in New
York while underlying action was filed in District of Massachusetts).
New Yorks Shield Law provides an absolute privilege from testifying and producing
documents with regard to news obtained under a promise of confidentiality but only a qualified
privilege with regard to news that is both unpublished and not obtained under a promise of
confidentiality. N.Y. Civ. Rights Law 79h(b)(c). To successfully raise a claim of absolute
privilege under New Yorks Shield Law, the information must be imparted to the reporter under a
cloak of confidentiality, and the information or sources must be obtained in the course of
gathering news for publication. People v. Wolf, 69 Misc.2d 256, 329 N.Y.S.2d 291 (Sup. Ct.) affd,
39 A.D.2d 864, 333 N.Y.S.2d 299 (1972); People v. LeGrand, 67 A.D.2d 446, 415 N.Y.S.2d 252
(1979).
Relevant here, subpoena requests 10 and 11 (see Movants Exs. 1-2) directly request
confidential materials which are absolutely privileged under this analysis: (10) Any and all
documents that refer or relate in any way to the communications between James Risen and Priscilla
Painton regarding confidential sources and (11) regarding classified material and/or
sources. (Emphasis added). In both instances, there can be no dispute that the language in the
requests themselves asks for production of materials that would have had to have been imparted
to Mr. Risen under a cloak of confidentiality, whether confidential sources or classified material
or sources.
Several other requests go directly to the editorial processes of S&S and should be subject
to the qualified privilege protecting unpublished information (or are irrelevant and should be
quashed, as discussed in Section IV, infra). A party seeking unpublished news may overcome
the qualified privilege only by making a clear and specific showing that the news: (i) is highly
material and relevant; (ii) is critical or necessary to the maintenance of a partys claim, defense or
15
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
22 of 31 Page 23 of
78
proof of an issue material thereto; and (iii) is not obtainable from any alternative source. N.Y.
Civ. Rights Law 79h(c). To determine that unpublished news is either critical or necessary
within the meaning of 79h, there must be a finding that the claim for which the information is
to be used virtually rises or falls with the admission or exclusion of the proffered evidence. In re
Application to Quash Subpoena to Natl Broad. Co., 79 F.3d 346, 351 (2d Cir.1996) (internal
quotation marks omitted) (also stating that the critical or necessary clause must mean something
more than useful). The test is not merely that the material be helpful or probative, but whether
or not . . . the action may be presented without it. In re Am. Broad. Companies, Inc., 189 Misc.2d
805, 808, 735 N.Y.S.2d 919, 922 (Sup.Ct. 2001) (internal quotation marks omitted). See also
Baker, 669 F.3d at 107-08. New Yorks Shield Law specifically places the burden on the
subpoenaing party to overcome the qualified privilege.
N.Y. Civ. Rights Law 79h(c).
Accordingly, Plaintiff is required to set forth the requisite -- and demanding -- clear and specific
showing to overcome the qualified privilege. See, e.g., ONeil v. Oakgrove Constr., 71 N.Y.2d
521, 527 (1988) (As formulated by the decisions of these courts, the privilege bars coerced
disclosure of resource materials . . . which are obtained or otherwise generated in the course of
newsgathering or newspreparing activities, unless the moving litigant satisfies a tripartite test
which is more demanding than the requirements of CPLR 3101(a).).
Plaintiff has utterly failed to do so7, instead offering bombastic statements and rank
conclusory allegations in his motion based on a scattershot version of events (as set forth above at
Likewise, Plaintiff has failed to make any effort to satisfy the similar, but not as stringent, test to
overcome the qualified privilege for non-confidential information offered by the Second Circuit.
Under the Second Circuit test, non-confidential materials are protected under the reporters
privilege because there is a broader concern for the potential harm to the paramount public interest
in the maintenance of a vigorous, aggressive and independent press. Gonzales v. Nat'l Broad.
Co., Inc., 194 F.3d 29, 33 (2d Cir.1999). Under Gonzales, the Court may compel disclosure of
non-confidential materials only when the requesting party shows the materials at issue are (1) of
16
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
23 of 31 Page 24 of
78
page 6), and spuriously claiming the reasons why S&S ultimately did not publish the Book are
critical and relevant because they anticipate a particular answer for which there is not a shred of
evidence, and insist the answer will likely show that S&S rejected publication because it saw and
determined that the Book was defamatory toward Mr. Montgomery and/or contained classified
government information that could subject them to civil and criminal liability. See Movants Br.
at 4.
First, what S&S thought or believed about Mr. Risens manuscript is completely irrelevant
and non-material to whether statements ultimately published in the Book are actionable
defamation, or whether Houghton Mifflin and/or Mr. Risen had the subjective intent to publish
knowing falsehoods.8 Movants conclusion to the contrary -- that the issue of the refusal to
publish Defendant Risens manuscript goes to the core of whether the subject book is defamatory,
and thus invokes constitutional protections (Movants Br. at 11) -- shows a startling ignorance
of defamation law. See, e.g., Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 177 (2d
Cir. 2000).
Second, even if the documents and testimony sought were highly material and relevant,
they are not critical or necessary because in order to be classified as such, the movant must
convince the court that the claim virtually rises or falls with the admission or exclusion of the
proffered evidence. Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 908 (3rd Dept. 1997). See
likely relevance to a significant issue in the case and (2) are not reasonably obtainable from other
available sources. Id. As discussed, Plaintiff has not done either here.
Defendants Motion to Dismiss (Docket of Civ. Action 15-cv-20782 (S.D. Fla.), Doc 52) lists
some of the many hurdles faced by Movant, including overcoming assertion of the fair report
privilege and then establishing actionable defamation in the face of a truth defense. Defendants
assert Plaintiff must demonstrate actual malice by clear and convincing evidence, Plaintiff is
insistent that he is not subject to this incredibly high constitutional threshold, but that the
information allegedly held by S&S is crucial to obtaining punitive damages. See Movants Br. at
4.
8
17
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
24 of 31 Page 25 of
78
also IMO American Broadcasting Companies, Inc., 189 Misc.2d 805 (2001) (The test is not
merely that the material be helpful or probative, but whether defense of the action may be presented
without it.) Since Movant cannot even show that S&Ss information goes to the veracity of the
Book, it doesnt matter; there is no allegation that S&S is the publisher or could have been involved
in the decision to publish. Plaintiffs farfetched theory also does not take into account edits that
Houghton Mifflin likely made to the manuscript.
Perhaps most telling and conclusive proof that the testimony and documents the
subpoenas seek cannot be critical and relevant is the fact that in a recent motion to extend
discovery deadlines filed by Plaintiff in the Libel Action, Plaintiff makes no mention whatsoever
of the subpoenas as reason for requiring an extension of discovery, instead solely referencing the
FBIs ongoing analysis of certain materials. See Rosen Decl., Ex. F.
Even if Movants spurious arguments were sufficient to meet his burden to show that the
materials sought are not only highly material and relevant, but necessary for his case, Movant has
still failed to detail his efforts to obtain the information from an alternative source. See Flynn, 235
A.D.2d 907 (Other than stating that the materials are not otherwise available, plaintiff has not
detailed any efforts made to obtain the requested documents or the information contained
therein.). In fact, Movant proffers no attempt to seek readily available alternative sources for the
information he seeks, chief among which is Defendant Risen himself who did not assert the
reporters privilege as to Montgomery or chapter two of the Book. See, e.g., In re Application of
Steven Emerson, 303 A.D.2d 229 (1st Dept. 2003) (editor should not have been subpoenaed when
reporter defendant in libel suit was the obvious alternative source); In re Gibson, 106 A.D.3d 424
(1st Dept. 2013) (reporter should not have been subpoenaed when it does not appear plaintiff even
attempted to find alternative sources, which appear to exist).
18
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
25 of 31 Page 26 of
78
For the reasons set forth above, this Court should quash the subpoenas based on absolute
and qualified privileges provided by New Yorks Shield Law.
IV.
PLAINTIFFS REQUESTS ARE FATALLY OVERBROAD AND NEITHER

S&S NOR MS. PAINTON SHOULD BE COMPELLED TO RESPOND.
Fed. R. Civ. P. 26(b)(1) permits discovery regarding any nonprivileged matter that is
relevant to any partys claim or defense. Though relevant is interpreted broadly, it is not
limitless; [t]o be relevant, the request for information must be germane to the subject matter of
the claim, defenses or counterclaims. See Lugosch v. Congel, 218 F.R.D. 41, 45 (N.D.N.Y.
2003). Accordingly, parties should not be permitted to roam in the shadow zones of relevancy
and to explore matter which does not presently appear germane on the theory that [it] might
conceivably become so. Id. (quoting In re Sur. Ass'n of Am., 388 F.2d 412, 414 (2d Cir. 1967)).
Stated differently, courts should not grant discovery requests based on pure speculation that
amount to nothing more than a fishing expedition. Collens v. City of New York, 222 F.R.D.
249, 253 (S.D.N.Y. 2004) (emphasis added). See also Sec. Inv'r Prot. Corp. v. Bernard L. Madoff
Inv. Sec. LLC, 496 B.R. 713, 724 (Bankr. S.D.N.Y. 2013) (explaining that discovery, like all
matters of procedure, has ultimate and necessary boundaries, and that discovery requests should
not be based on pure speculation or conjecture) (internal quotations and citations omitted). A
motion to compel discovery should therefore be denied where the plaintiffs request is merely a
fishing expedition and where the plaintiff has not produced any specific facts whatsoever to
support its allegation nor made any showing that the discovery sought is in any way relevant or
necessary. See Spina v. Our Lady of Mercy Med. Ctr., No. 97 CIV 4661 (RCC), 2001 WL
630481, at *2-3 (S.D.N.Y. June 7, 2001). This is particularly true where a non-party is involved,
as the federal discovery rules, specifically Rule 45, recognize that it is a central goal to prevent
nonparty witnesses from being subjected to excessive discovery burdens. Price Waterhouse, 182
F.R.D. at 63 (citation omitted).
19
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
26 of 31 Page 27 of
78
In recognition of these qualifications on discovery, Fed. R. Civ. P. 26(b)(2)(C)9 requires
courts to limit discovery where: (1) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that is more convenient, less burdensome,
or less expensive; (2) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or (3) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the case, the amount in controversy, the
parties resources, the importance of the issues at stake in the action, and the importance of the
discovery in resolving the issues. Similarly, in the context of a subpoena, Fed. R. Civ. P.
45(d)(3)(A) requires a court to quash or modify same where the subpoena subjects a person to
undue burden. Important here, [i]n assessing these considerations, special weight [should be
given] to the burden on non-parties of producing documents to parties involved in litigation.
Cohen, 255 F.R.D. at 117 (internal quotation and citation omitted).
In this case, the S&S Non-parties would be subjected to excessive discovery burdens if
required to comply with Plaintiffs subpoenas.10 First, the documents sought by Plaintiff are not
maintained in an organized central document repository system; rather, each department (and in
some cases individuals) within the company controls its own files. See Affidavit of Tracy Woelfel
(Woelfel Aff.), attached to Rosen Decl. as Ex. G, at 6. Accordingly, in order to search for the
As of December 1, 2015, amendments to Fed. R. Civ. P. 26 (b) (1) authorize only proportional
discovery of matters relevant to a party's claim or defense: Unless otherwise limited by court
order, the scope of discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs
of the case, considering the importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and whether the burden and expense of the
proposed discovery outweighs the likely benefit. (Emphasis added)
10
As a threshold matter, the document requests directed to Ms. Painton are more properly directed
to S&S, as the documents sought were created in the course of Ms. Paintons official capacity as
an employee of S&S and therefore are in the possession of S&S, not Ms. Painton individually.
Thus, the subpoena directed to Ms. Painton should be quashed on this ground alone.
20
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
27 of 31 Page 28 of
78
documents sought by Plaintiff, the S&S Non-parties would be required to canvass employees
within multiple different departments to determine if they possess responsive documents. Id. at
7. For example, any given book publishing project will involve employees from Editorial,
Publicity, Marketing, Copy-Editing, Managing Editorial, Design, Contracts, Accounting, Legal or
other departments. Id.
Second, employees in those departments would likely be required to conduct sweeping
searches of hard copy documents in their files and then the information technology department of
S&Ss parent, CBS Corporation, would need to search electronic files, which may not be
maintained under specific categories and, even if categorized for their own purposes, are not likely
to be organized in a manner that would readily allow identification of which documents might be
responsive to each of the 23 broad categories in the subpoenas. Id. at 8. Thus, identifying for
instance any and all documents that refer or relate in any way to Dennis Montgomery or any
and all documents that refer or relate to payments between Houghton Mifflin and S&S [without
any time parameter] could be virtually impossible. Id. at 9. Indeed, it is possible that numerous
book publishing projects may in some tangential, irrelevant way have mentioned Plaintiff or
Houghton Mifflin may have entered into any number of agreements with S&S over the years, such
as those relating to subsidiary rights, none of which have anything to do with the publication of
Pay Any Price. Id.
Third, the CBS data sweep would collect data from potentially dozens, if not hundreds, of
employees computers and e-mail accounts. Id. at 10. CBS would then need to perform various
key word searches on that data in an effort to ascertain what subset of information might be
responsive to the twenty-three sweeping categories in the subpoenas, and then S&Ss Legal
Department and/or outside counsel would need to review such subset of information to see if it is,
in fact, responsive to the subpoena. Id.
21
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
28 of 31 Page 29 of
78
Fourth, many of the documents sought seek confidential, proprietary and commercially
sensitive information such as the terms of contracts, payments, internal policies, and unpublished
book projects. Id. at 11. S&Ss Legal Department and/or outside counsel would then be required
to expend substantial time reviewing the documents retrieved to identify any such documents. Id.
Similarly, given the involvement of S&Ss Legal Department in various stages of book publishing
projects, S&Ss Legal Department and/or outside counsel would be required to review the entirety
of the documents retrieved for attorney-client and attorney work-product privilege. Id. at 12.
S&Ss Law Department and/or outside counsel would also be required to review documents
retrieved for privilege on the basis of the New Yorks Shield Law or other applicable laws. Id.
It is likely that this search, retrieval and review process could take weeks and involve the
active participation of numerous employees at S&S and CBS, as well as cause substantial
inconvenience and expense. Id. at 4, 13.
There is no basis whatsoever to subject the S&S Non-parties to this excessive discovery
burden in light of the fact that Plaintiff improperly served the subpoenas and has failed to articulate
how the requested documents are relevant to whether Mr. Risens Book is defamatory towards
Plaintiff. Instead, Plaintiff has woven a fantastical theory that S&S decided not to publish the
Book because it saw and determined that The Book was defamatory toward Mr. Montgomery
and/or contained classified government information that could subject them to civil and criminal
liability, if not prosecution. See Movants Br. at 4. This theory, cobbled together by Plaintiff
after purportedly learning that The Book originally was to be published by Defendant Risens
longtime publisher, Simon & Schuster, and edited and reviewed byPriscilla Painton defies
credulity. The simple fact that a company ultimately decided not to publish a book is not a basis
to contend that that company found the manuscript to be written with actual malice and
defamation (see id., pg. 5) or has documents that are highly relevant to the underlying action
22
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
29 of 31 Page 30 of
78
(see id., pg. 2). Plaintiffs argument to the contrary is nothing more than rank speculation that
cannot show that the documents sought are in any way relevant, let alone sufficiently relevant to
outweigh the burden production would impose on the S&S Non-parties. See Night Hawk Ltd. v.
Briarpatch Ltd., L.P., No. 03 CIV.1382 RWS, 2003 WL 23018833, at *8 (S.D.N.Y. Dec. 23, 2003).
Moreover, the subpoenas requests (Reqs.) are facially overbroad. Even if Plaintiffs
far-fetched theory was to be believed, the requests reach far beyond the Book and the alleged
defamation at issue. For example, eleven of Plaintiffs document requests are in no way limited
to documents related to Plaintiff, the Book or the alleged defamation, but instead seek any and all
documents that refer or relate to a broad spectrum of contracts, communications and payments,
without any date restriction. See Reqs. 6, 8-12, 14, 17-19, 21. It strains the imagination to believe
that these requested documents could be even tangentially relevant to the Book or to Plaintiff, let
alone to Plaintiffs Libel Action. Indeed, S&S is a publishing company that has engaged in
numerous contracts, communications and payments in the course of its business relationships;
Plaintiff is not entitled to engage in a fishing expedition of these relationships in the hopes of
discovering some extraneous piece of information to support his contrived theory.
Moreover, even those document requests that are limited to Plaintiff go far beyond the
Book or the Libel Action, instead seeking Any and all documents that refer or relate in any way
to Dennis Montgomery (Req. 1), communications to and from James Risen concerning Dennis
Montgomery (Req. 2), and communications with Houghton Mifflin concerning Dennis
Montgomery (Reqs. 3-4). Again, S&S is a publishing company with numerous book projects,
both published and unpublished, which may in some tangential fashion refer or relate to
Plaintiff or communications concerning Plaintiff. This does not mean, however, that S&S and Ms.
Painton should be required to search the entirety of their hard copy and electronic files to find each
and every mention of Plaintiffs name that is not relevancy, it is a fishing expedition.
23
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
30 of 31 Page 31 of
78
The overbreadth of Plaintiffs subpoenas is further evidenced by the fact Plaintiff seeks
documents that could not possibly even be in the possession of S&S or Ms. Painton, such as
contracts by and between Tina Bennett and Houghton Mifflin (Reqs. 15-16), documents that
refer or relate in any way to Tina Bennett deciding to contact Houghton Mifflin (Req. 20),
documents that refer or relate in any way to Bruce Nichols concerning Pay Any Price (Req. 22),
and copyrights and other intellectual property rights concerning Pay Any Price (Req. 23).
Finally, the few requests that are limited to the Book are still too overbroad to survive. See
Reqs. 5, 7 and 13. For example, Plaintiff seeks Any and all documents that refer or relate in any
way to the preliminary measures [S&S] took in order to publish Pay Any Price. (Req. 13). The
preliminary measures would include a vast number of documents from various employees
regarding S&Ss internal procedures and policies regarding the acquisition and editorial processes.
This is clearly overbroad in light of the reason for Plaintiffs subpoena -- purportedly to obtain
proof that S&S and Ms. Painton believed the manuscript to be defamatory towards Plaintiff.
Courts in the Southern District of New York have long recognized that [a] document request is
unreasonable when it is out of proportion to the end sought, as when the person served is required
to fetch all his books at once to an exploratory investigation whose purposes and limits can be
determined only as it proceeds. United States v. Int'l Bus. Machines Corp., 83 F.R.D. 97, 10607 (S.D.N.Y. 1979) (quoting McMann v. SEC, 87 F.2d 377, 379 (2d Cir.) (L. Hand, J.), cert.
denied, 301 U.S. 684 (1937)). And, in any event, the testimony and information sought by these
few requests is protected by New York Shield Laws qualified privilege. See Section III, supra.
In the end, Plaintiff has failed to establish that the requested testimony or documents may
be compelled, let alone even survive S&S and Ms. Paintons Motion to Quash.
24
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
5 Filed
on FLSD
11/19/15
Docket
Page
12/04/2015
31 of 31 Page 32 of
78
V.
THE S&S NON-PARTIES OPPOSE REMOTE CONFERENCING OF ANY

DEPOSITION.
For the reasons set forth in the October 30, 2015 letter from Defendants counsel objecting
to remote conferencing of any depositions of non-parties (see Movants Ex. 11), should this Court
order the S&S Non-parties depositions be taken, the S&S Non-parties join in that objection for
the reasons stated in the October 30, 2015 letter.
CONCLUSION
For the reasons set forth herein, non-parties Simon & Schuster, Inc. and Priscilla Painton
respectfully request that the Motion to Compel filed by Dennis Montgomery be denied in its
entirety, and their Motion to Quash two improperly served subpoenas, seeking privileged and/or
overbroad and unduly burdensome testimony and documents, be granted.
McCUSKER, ANSELMI, ROSEN &

CARVELLI, P.C.
By: ____/s/ Bruce S. Rosen____________________

Bruce S. Rosen, Esq.
Sarah Fehm Stewart, Esq.
805 Third Avenue, 12th Floor
New York, NY 10022
(T) (212) 308-0070
(F) (917) 677-8978
Attorneys for Non-Parties
Simon & Schuster, Inc. and Priscilla Painton
Dated: November 19, 2015
25
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
14 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
1 of 22 Page 33 of
78

SOUTHERN DISTRICT OF NEW YORK
---------------------------------- x
:
:
:
Plaintiff,
:
:
v.
:
:
SIMON & SCHUSTER,
:
:
and
:
:
PRISCILLA PAINTON,
:
:
and
:
:
TINA BENNETT,
:
:
Defendants.
:
---------------------------------- x
No. 1:15-mc-00363-P1
ECF Case
Oral Argument Requested
DEFENDANT TINA BENNETTS MEMORANDUM OF LAW IN OPPOSITION

TO PLAINTIFFS EMERGENCY MOTION TO COMPEL COMPLIANCE WITH
A SUBPOENA AND IN SUPPORT OF HER CROSS-MOTION TO
QUASH OR MODIFY THAT SUBPOENA
MARINO, TORTORELLA & BOYLE, P.C.

437 Southern Boulevard
Chatham, New Jersey 07928-1488
(973) 824-9300
Attorneys for Defendant Tina Bennett
On the Brief:
Kevin H. Marino
John A. Boyle
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
14 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
2 of 22 Page 34 of
78
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .....................................................................................................1
LEGAL ARGUMENT .....................................................................................................................4
I.
THE COURT SHOULD DECLINE TO ENFORCE THE SUBPOENA

BECAUSE MONTGOMERY DID NOT PROPERLY SERVE IT. ...................................4
II.
THE COURT SHOULD QUASH OR MODIFY THE SUBPOENA BECAUSE

IT SEEKS IRRELEVANT, DUPLICATIVE, UNNECESSARY DISCOVERY
FROM A NON-PARTY AND IS HENCE UNDULY BURDENSOME. ..........................9
A. The Court Should Quash The Subpoena Because The Testimony And
Documents Sought Are Not Relevant To Montgomerys Claims. ..............................10
B. In The Alternative, The Court Should Limit The Subpoenas Scope To
Documents And Testimony Related To S&Ss Reasons For Not Publishing
Risens Book. ...............................................................................................................12
III.
THE COURT SHOULD DENY MONTGOMERYS REQUEST TO DEPOSE

BENNETT BY VIDEOCONFERENCE. ..........................................................................15
CONCLUSION ..............................................................................................................................18
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
14 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
3 of 22 Page 35 of
78
Cases
Advani Enters. v. Underwriters at Lloyds,
No. 95-cv-4864, 2000 U.S. Dist. LEXIS 15421 (S.D.N.Y. Oct 18, 2002) ............................... 15
Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Ams.,
262 F.R.D. 293 (S.D.N.Y. 2009) ................................................................................................ 4
Cadlerock Joint Venture, L.P. v. Adon Fruits & Vegetables Inc.,
No. 09-cv-2507, 2010 U.S. Dist. LEXIS 65978 (E.D.N.Y. Apr. 10, 2010) ................... 5, 6, 7, 8
Cartier v. Geneve Collections, Inc.,
No 07-cv-0201, 2008 U.S. Dist. LEXIS 14714 (E.D.N.Y. Feb. 27, 2008) ................................ 5
Cohen v. City of New York,
255 F.R.D. 110 (S.D.N.Y. 2008) .............................................................................................. 10
Collens v. City of New York,
222 F.R.D. 249 (S.D.N.Y. 2004) .............................................................................................. 13
Concord Boat Corp. v. Brunswick Corp.,
169 F.R.D. 44 (S.D.N.Y. 1996) .................................................................................... 10, 12, 15
Fears v. Wilhelmina Model Agency, Inc.,
No. 02-cv-4911, 2004 U.S. Dist. LEXIS 5575 (S.D.N.Y. April 1, 2004) ................................ 10
Firemans Fund Ins. Co. v. Zoufaly,
No. 93-cv-1890, 1994 U.S. Dist. LEXIS 15055 (S.D.N.Y. Oct. 21, 1994) .............................. 15
Haber v. ASN 50th Street, LLC,
272 F.R.D. 377 (S.D.N.Y. 2011) ................................................................................................ 5
JPMorgan Chase Bank, N.A. v. IDW Grp., LLC,
No. 08-cv-9116, 2009 U.S. Dist. LEXIS 39714 (S.D.N.Y. May 11, 2009) ............................... 5
Kingsway Fin. Servs. v. Pricewaterhouse-Coopers LLP,
No. 03-cv-5560, 2008 U.S. Dist. LEXIS 77018 (S.D.N.Y. Oct. 2, 2008) ............................ 9, 10
Lapin v. Goldman,
No. 04-cv-2236, 2009 U.S. Dist. LEXIS 87788 (S.D.N.Y. Sept. 9, 2009) ................................ 5
Leser v. U.S. Bank Natl Assn,
No. 09-cv-2362, 2011 U.S. Dist. LEXIS 28127 (E.D.N.Y. Mar. 18, 2011)............................... 5
Medical Diagnostic Imaging, PLLC v. CareCore Natl, LLC,
No. 06-cv-7764, 2008 U.S. Dist. LEXIS 62376 (S.D.N.Y. Aug. 15, 2008)............................... 8
Mercado v. Transoceanic Cable Ship Co.,
No. 88-cv-5335; 1989 U.S. Dist. LEXIS 8484 (E.D. Pa. July 25, 1989) ........................... 15, 16
Travelers Indemnity Co. v. Metropolitan Life Insurance Co.,
228 F.R.D. 111 (D. Conn. 2005) .............................................................................................. 10
ii
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
14 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
4 of 22 Page 36 of
78
Tube City IMS, LLC v. Anza Capital Partners, LLC,

No. 14-cv-1783, 2014 U.S. Dist. LEXIS 160667 (S.D.N.Y. Nov. 14, 2014)..................... 5, 6, 7
Ultradent Prods., Inc. v. Hayman,
No. M8-85, 2002 U.S. Dist. LEXIS 18000 (S.D.N.Y. Sept. 24, 2002) .................................. 5, 6
United States v. Intl Bus. Mach Corp.,
83 F.R.D. 97 (S.D.N.Y. 1979) .................................................................................................. 10
Rules
Fed. R. Civ. P. 30(b)(4)................................................................................................................. 15
Fed. R. Civ. P. 30(b)(6)........................................................................................................... 16, 17
Fed. R. Civ. P. 45 ............................................................................................................................ 4
Fed. R. Civ. P. 45(b)(1)........................................................................................................... 4, 8, 9
Fed. R. Civ. P. 45(d)(2)................................................................................................................... 9
Fed. R. Civ. P. 45(d)(3)................................................................................................................... 9
N.Y. CPLR 308 ............................................................................................................................ 4
iii
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
14 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
5 of 22 Page 37 of
78
PRELIMINARY STATEMENT
Defendant Tina Bennett (Bennett) respectfully submits this memorandum of law and the
accompanying Declarations of Kevin H. Marino (Marino Decl.) and Svetlana Katz (Katz
Decl.) in opposition to the motion of Plaintiff, Dennis L. Montgomery (Montgomery), to
compel Bennett to comply with a subpoena to take her deposition by videoconference (the
Subpoena) in a libel action pending in the Southern District of Florida, Montgomery v. Risen,
et al., 15-cv-20782, and in support of Bennetts cross-motion to quash or modify the Subpoena.
In his libel action, Montgomery sued James Risen (Risen), a noted author and PulitzerPrize winning New York Times reporter, and his publisher, Houghton Mifflin Harcourt Company
(Houghton Mifflin), claiming that he was defamed by statements made in Risens 2014 book,
Pay Any Price: Greed, Power and Endless War. Bennett is Risens literary agent, and Montgomery
contends that she has evidence relevant to his libel action. His motion also seeks to compel,
pursuant to nearly identical subpoenas, the depositions of Simon & Schuster (S&S), which at
one time planned to publish Pay Any Price, and Priscilla Painton, the S&S editor who worked with
Risen on Pay Any Price. Those parties (collectively, the S&S Parties) have similarly opposed
the motion.
In this motion to compel, Montgomery contends that Bennett was properly served with the
Subpoena; that she waived any objection to it; that his request for her deposition is appropriate
because she has information and documents that bear upon his libel action; and that he should be
permitted to take her deposition by videoconference rather than traveling to New York to do so.
Montgomery is wrong on all counts.
First, Bennett was not served with the Subpoena in accordance with Fed. R. Civ. P. 45
because Montgomerywho admits Bennett was not personally served with the Subpoenadid
1
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
14 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
6 of 22 Page 38 of
78
not fulfill any of the three requirements for alternative means of service. Specifically, he did not
(1) initially attempt to have Bennett served personally; (2) seek prior court authorization to employ
an alternative means of serving her; or (3) use an alternative means of service that both comported
with due process and was reasonably calculated to ensure that Bennett received actual notice of
the Subpoena.
Although Montgomerys process server claims he served the Subpoena on
Bennetts assistant, the process server in fact left the Subpoena at the mailroom of William Morris
Endeavor, Bennetts employer. He also claims that he sent Bennett a copy of the Subpoena via
first-class mail. But neither delivering a subpoena to a mailroom nor sending it in the mail
(assuming that occurred) is sufficient to constitute valid service. Thus, even if Montgomery had
first attempted personal service and then sought court approval before attempting to serve Bennett
by alternative meansand it is undisputed that he did neitherleaving the Subpoena in the
mailroom of her employer and mailing her a copy of that Subpoena would not have been valid
service.
Second, beyond its defective service, the Subpoena is invalid because Montgomery has not
met his burden of establishing that the wealth of information he seeks from Bennett, a non-party,
is actually relevant to his claims. As a threshold matter, Montgomery only argues that one of the
twenty-three topics on which he seeks documents and testimonyspecifically, the reasons S&S
did not publish Pay Any Priceis relevant to his claims. And on that subject, Montgomery (a)
has already taken the depositions of individuals with personal knowledge of why the book was not
published by S&S; and (b) has no basis to believe Bennett would contradict the testimony he has
already elicited. Her deposition would thus entail the taking of marginally relevant, plainly
duplicative, and certainly unnecessary discovery from a non-party. Even if the Court were inclined
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
14 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
7 of 22 Page 39 of
78
to permit that deposition to proceed, it should not require Bennett to produce documents or give
testimony on 22 of the 23 topics identified in the Subpoena, which are well beyond the scope of
anything that might fairly be termed relevant.
Finally, Montgomery should not be permitted to conduct Bennetts deposition by
videoconference because prior videoconference depositions in this case have revealed that
proceeding in that fashion is unworkable and manifestly prejudicial to the witness. In those prior
depositions, there was significant confusion and delay because Montgomerys counsel did not
provide the court reporter with his dozens of proposed deposition exhibits in advance, instead
emailing them to the deponents counsel shortly before the deposition.1 As a result, counsel
defending the witnesses has had to organize those documents for Montgomerys counsel and
perform the role typically performed by the lawyer taking the deposition, making certain the
witness had the right exhibit in hand and reviewed it before the questioning could proceed, then
monitoring the proceeding to make certain there was no miscommunication regarding documents
between Montgomerys counsel and the witness. That is simply not the way it works. As counsel
for the party seeking discovery from a non-party in a district other than the one in which he filed
suit, Montgomerys attorney should be compelled to appear personally in New York to conduct
any deposition of Bennett that the Court may order.
For these reasons, amplified below, the Court should (a) deny Montgomerys motion to
compel Bennetts deposition, and reject his waiver argument because the Subpoena was not
Bennett (a) joins in the arguments made by Houghton Mifflin and the S&S Parties in opposition
to Montgomerys motion to compel compliance with the subpoenas and in their cross-motions to
quash those subpoenas, including the S&S Parties argument that the Court should quash the
subpoenas based on the absolute and qualified privileges provided by New Yorks Shield Law;
and (b) adopts the Factual Background in the S&S Parties Memorandum of Law (Dkt. # 5.).
3
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
14 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
8 of 22 Page 40 of
78
properly served on Bennett; (b) quash the Subpoena as irrelevant or, in the alternative, limit its
scope to the reasons why S&S did not ultimately publish Pay Any Price; and (d) reject
Montgomerys request to conduct Bennetts deposition by videoconference and compel him to
take any such deposition in person.
LEGAL ARGUMENT
I.
THE COURT SHOULD DECLINE TO ENFORCE THE SUBPOENA BECAUSE

MONTGOMERY DID NOT PROPERLY SERVE IT.
Fed. R. Civ. P. 45(b)(1) requires that a subpoena be served by delivering a copy to the
named person and, if the subpoena requires that persons attendance, tendering the fees for 1 days
attendance and the mileage allowed by law.2 Montgomery does not claim to have served Bennett
personally, or even to have attempted to do so. Rather, he claims that his process server, Raymond
Hollingsworth (Hollingsworth), delivered the Subpoena to Bennetts administrative assistant,
Svetlana Katz (Katz). (Moving Br. at 7.) Katz disputes that contention. (Katz Decl., 2-3.)
In recent years, courts in this district have relaxed the requirement that a subpoena must,
in every instance, be personally served on the witness, and have instead interpret[ed] Rule 45s
personal service requirement liberally where the type of service used was calculated to provide
timely actual notice. Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Ams., 262 F.R.D. 293,
304 (S.D.N.Y. 2009). Nonetheless, the use of alternative means of service is subject to three
critical requirements. First, alternative methods of service are available only after the [serving
Montgomery incorrectly contends that service of the Subpoena is governed by, and was proper
pursuant to, N.Y. CPLR 308. (Moving Br. at 7.) That provision of the New York Civil Practice
Law and Rules, which governs service of a summons and complaint in a New York state court
civil action, is entirely irrelevant here. On this motion, Montgomery is seeking to enforce a federal
subpoena issued by the United States District Court for the Southern District of Florida; service of
that federal subpoena, like enforcement and compliance with it, is governed by Fed. R. Civ. P. 45.
4
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
14 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
9 of 22 Page 41 of
78
party] diligently . . . attempted to effectuate personal service on the witness. Cadlerock Joint
Venture, L.P. v. Adon Fruits & Vegetables Inc., No. 09-cv-2507, 2010 U.S. Dist. LEXIS 65978,
at *10 (E.D.N.Y. Apr. 10, 2010) (quoting Cartier v. Geneve Collections, Inc., No 07-cv-0201,
2008 U.S. Dist. LEXIS 14714, at *1 (E.D.N.Y. Feb. 27, 2008) (courts [have] sanctioned
alternative means of service only after the plaintiff had diligently attempted to effectuate personal
service); see also Tube City IMS, LLC v. Anza Capital Partners, LLC, No. 14-cv-1783, 2014
U.S. Dist. LEXIS 160667, at *2-3 (S.D.N.Y. Nov. 14, 2014) (multiple attempts at personal service
failed); JPMorgan Chase Bank, N.A. v. IDW Grp., LLC, No. 08-cv-9116, 2009 U.S. Dist. LEXIS
39714, at *7-8 (S.D.N.Y. May 11, 2009) (same); Ultradent Prods., Inc. v. Hayman, No. M8-85,
2002 U.S. Dist. LEXIS 18000, at *12 (S.D.N.Y. Sept. 24, 2002) (same). In fact, at least one court
has heldrelying on Cadlerock and Cartierthat the witness must be aware of the attempts at
personal service for an alternative means to be warranted. Leser v. U.S. Bank Natl Assn, No.
09-cv-2362, 2011 U.S. Dist. LEXIS 28127 (E.D.N.Y. Mar. 18, 2011).
Second, leave to employ alternative means of service first must be authorized by a court
to ensure that the means employed are designed to provide the non-party with adequate notice.
Haber v. ASN 50th Street, LLC, 272 F.R.D. 377, 382 (S.D.N.Y. 2011) (citation and internal
quotation marks omitted) (emphasis added); see also Lapin v. Goldman, No. 04-cv-2236, 2009
U.S. Dist. LEXIS 87788, at *4-5 (S.D.N.Y. Sept. 9, 2009) (the case law is clear that any
alternative service must be authorized by a court order). Leave to employ alternative means of
service is typically only granted after multiple attempts at personal service. For example, there
were six failed attempts at personal service in Tube City IMS, 2014 U.S. Dist. LEXIS 160667, at
*2-3, and nine failed attempts in JPMorgan Chase, 2009 U.S. Dist. LEXIS 39714, at *7-8
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
10 of 22 Page 42 of
78
(approving alternative means of service after nine attempts at personal service). See also Ultradent
Prods., 2002 U.S. Dist. LEXIS 18000, at *12 (S.D.N.Y. Sept. 24, 2002) (two attempts at personal
service).
Third, any alternative to personal service must be calculated to provide timely actual
notice. Tube City IMS, 2014 U.S. Dist. LEXIS 160667, at *5. Stated differently, [a]ny method
of service of the subpoena has to comport with due process and be reasonably calculated under the
circumstances to provide [the witness] with both notice and an opportunity to present objections.
Cadlerock, 2010 U.S. Dist. LEXIS 65978, at *10-11 (internal citation and quotation omitted).
Here, Montgomery has not satisfiedand cannot satisfyany of the three requirements
for alternative means of service with respect to the Subpoena. As to the first requirement,
Montgomery does not contend, much less present evidence, that he made any attempt whatsoever
to effectuate personal service of the Subpoena on Bennett before resorting to an alternative means.
The Subpoena was not even issued until October 19, 2015 (Moving Br., Ex. 3), the day before
Hollingsworth says he served the Subpoena on Katz, in the early afternoon (1:13 p.m.) (id., Ex.
5); there was thus no time within which Hollingsworth could have attempted personal service
without success and thereafter sought court approval for alternative service.
As to the second element, Montgomerys counsel likewise does not contend that he
attempted to obtain authorization from any court to serve Bennett by alternative means. The docket
in the underlying Florida litigation does not evince any such application. (Marino Decl., Ex. A.)
And Montgomery does not provide any evidence, or even suggest, that he applied to this or any
other court for leave to serve Bennett by alternative means (which request, had it been made, would
surely have been denied given his failure to initially attempt personal service).
Instead,
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
11 of 22 Page 43 of
78
Montgomery simply and improperly arrogated the right to serve Bennett by alternative means.
As to the third element, the alternative method of service Montgomery employed did not
comport with due process and was not reasonably calculated under the circumstances to provide
[Bennett] with both notice and an opportunity to present objections. See Cadlerock, 2010 U.S.
Dist. LEXIS 65978, at *10-11. In the Moving Brief, Montgomery contendsbased on an affidavit
from a process server employed by his counsel, Larry Klayman3that, on October 20, 2015 at
1:13 p.m., his process server left the Subpoena with Bennetts administrative assistant, Svetlana
Katz, at the office of William Morris Endeavor (WME), located at 11 Madison Avenue, New
York, NY 10019. (Moving Br. at7 & Ex. 5.) But according to Katz, the process server did not
deliver the Subpoena to her. (Katz Decl., 2-3.) Rather, the Subpoena was delivered to the
mailroom of WMEs New York office and from there was eventually routed to Katz.4 (Id., 3.)
But delivering a subpoena to the mailroom of company with more than 3,000 employees
worldwide, (Marino Decl., Ex. B), does not satisfy due process, see Cadlerock, 2010 U.S. Dist.
LEXIS 65978, at *10-11, and certainly was not calculated to provide timely actual notice of the
Subpoena, see Tube City IMS, 2014 U.S. Dist. LEXIS 160667, at *5. Stated simply, Montgomery
could have had no idea as to whenor even ifthe Subpoena would reach Bennett.
Montgomery also claims that his process server mailed a copy of the Subpoena to Bennett
As the S&S Parties explain in their Brief (pg. 2 n.1), though Klayman is Montgomerys counsel
in the underlying Florida action, he has had his pro hac vice privileges revoked in this District and
is required by court order to attach to any future pro hac vice application a decision by then District
Court Judge Dennis Chin explaining the reasons for that revocation. As a result, a different lawyer,
who appears to be affiliated with Klaymans law firm, filed the instant action. Nonetheless,
Klayman has been involved in all aspects of the motion and the Subpoena it seeks to enforce.
4
The S&S Parties raise a similar challenge to the assertions of Montgomerys process server with
respect to his alleged service of the subpoenas upon them. (Dkt. #5 at 7-8.)
7
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
12 of 22 Page 44 of
78
via first class mail. (Moving Br. at 7.) The only support for that assertion is the Affidavit of
Hollingsworththe process server who also claims he served Katz with the Subpoenawhich
does not indicate where and to whom the Subpoena was mailed. Assuming arguendo the Subpoena
was mailed, service of a subpoena by first-class mail is typically not regarded as an alternative
means of service reasonably calculated to ensure actual notice to the subpoenaed witness, as the
court made clear in Cadlerock, 2010 U.S. Dist. LEXIS 65978, at *12. In Cadlerock, the plaintiff
attempted to deliver a subpoena to a defendant who had defaulted after making no appearance.
Following four attempts at personal service, all of which failed, the plaintiff affixed the subpoena
to the door of the defendants residence and also sent it by first-class mail. The court determined
that first-class mail was not an acceptable means of delivery under Fed. R. Civ. P. 45(b)(1)
because, unlike certified mail, it was not reasonably designed to ensure actual receipt. Cadlerock,
2010 U.S. Dist. LEXIS 65978, at *12. Critical to the courts determination was the plaintiffs
failure to proffer any justification for why it could not have sent the subpoena by certified mail
because nothing suggest[ed] that the cost associated with certified mail would have been
prohibitive or even burdensome.5 Id. Likewise hereespecially given that Montgomery made
Those few cases that have found service by first-class mail sufficient have done so under
significantly different circumstances. For example, in Medical Diagnostic Imaging, PLLC v.
CareCore Natl, LLC, No. 06-cv-7764, 2008 U.S. Dist. LEXIS 62376 (S.D.N.Y. Aug. 15, 2008),
the defendants attempted personal service and the witness affirmatively avoided it. During one
attempt, the defendants left the subpoena at the witnesss place of business with the front desk
clerkwho only accepted the subpoena after contacting the witness and obtaining authorization
to do soand followed up with a letter, to which the witness responded by email (stating he would
not appear). The court only permitted the use of first-class mail after the witnesss repeated efforts
to avoid personal service and because adequate notice was already established given the witnesss
communication with the defendants attorney. Id. at *10. The court, to which the defendants
applied on two occasions for assistance with service, refused to permit a witness to avoid
appearing for his deposition when he acknowledge[d] that he ha[d] actual knowledge of it. Id. at
*11.
8
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
13 of 22 Page 45 of
78
no attempt to personally serve Bennett or obtain approval to serve her through alternative means
service by regular mail should not be permitted.
Perhaps mindful of the Subpoenas deficiencies, Montgomery argues that Bennett waived
her right to object to it because she failed to timely serve objections thereto. (Moving Br. at 2.)
Though it is not mentioned in the Moving Brief, Montgomery presumably grounds his argument
on Rule 45(d)(2)(B), which provides, in pertinent part, that objections to a subpoena must be
served before the earlier of the time specified for compliance or 14 days after the subpoena is
served. But because Montgomery never properly served Bennett with the Subpoena, her time to
object never began to run. As a result, Bennett did not waive her objections to the Subpoena.
In sum, Montgomery failed (a) to serve the Subpoena on Bennett personally; or (b) to
satisfy any of the three requirements for use of an alternative means of service. He thus failed to
effectuate proper service of the Subpoena, and her time to object to it never began to run. Now
that he has moved to compel compliance with the Subpoena and Bennett has met that motion with
evidence that the Subpoena was not properly served, his motion to compel should be denied.
II.
THE COURT SHOULD QUASH OR MODIFY THE SUBPOENA BECAUSE IT

SEEKS IRRELEVANT, DUPLICATIVE, UNNECESSARY DISCOVERY FROM A
NON-PARTY AND IS HENCE UNDULY BURDENSOME.
Pursuant to Rule 45(d)(3)(A)(iv), a court must quash or modify a subpoena that . . .
subjects a person to undue burden. In response to a motion to quash or modify, [t]he party
issuing the subpoena must demonstrate that the information sought is relevant and material to the
allegations and claims at issue in the proceeding. Kingsway Fin. Servs. v. PricewaterhouseCoopers LLP, No. 03-cv-5560, 2008 U.S. Dist. LEXIS 77018, at *13 (S.D.N.Y. Oct. 2, 2008).
Further, [t]he determination of whether a subpoena is unduly burdensome turns, in part, on why
the requested material is relevant. Id. at *14 (citing United States v. Intl Bus. Mach Corp., 83
9
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
14 of 22 Page 46 of
78
F.R.D. 97, 104 (S.D.N.Y. 1979) (in evaluating a motion to quash, a court should consider such
factors as relevance, the need of the party for the documents, the breadth of the document request,
the time period covered by it, the particularity with which the documents are described and the
burden imposed.). In fact, [t]o the extent a subpoena sweepingly pursues material with little
apparent or likely relevance to the subject matter it runs the greater risk of being found overbroad
and unreasonable. Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 50 (S.D.N.Y. 1996).
Moreover, special weight [should be given] to the burden on non-parties of producing
documents to parties involved in litigation. Cohen v. City of New York, 255 F.R.D. 110, 117
(S.D.N.Y. 2008) (quoting Travelers Indemnity Co. v. Metropolitan Life Insurance Co., 228 F.R.D.
111, 113 (D. Conn. 2005)). The Court should be particularly sensitive to weighing the probative
value of the information sought against the burden of production on [a] nonparty. Id. (quoting
Fears v. Wilhelmina Model Agency, Inc., No. 02-cv-4911, 2004 U.S. Dist. LEXIS 5575, at *2
(S.D.N.Y. April 1, 2004)).
A.
The Court Should Quash The Subpoena Because The Testimony And
Documents Sought Are Not Relevant To Montgomerys Claims.
As to his threshold relevance burden, Montgomery fails to establish that the information
sought by the Subpoena is relevant and material to his allegations and claims. See Kingsway Fin.
Servs., 2008 U.S. Dist. LEXIS 77018, at *13. To the contrary, the Moving Brief effectively
concedes that, with one possible exception (addressed below), none of the information sought by
the Subpoena is relevant. Specifically, Montgomery argues that Bennett has knowledge of a single
topic he contends is relevant to his claims: the reasons why S&S decided not to publish Pay Any
Price. (Moving Br. at 4.) Nevertheless, Montgomery demands in the Subpoena twenty-three
different categories of documents and testimony, only one of which (Request No. 5) seeks
10
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
15 of 22 Page 47 of
78
documents that refer or relate in any way to the decision not to publish Pay Any Price, by James
Risen. (Moving Br., Ex. 3.) Having made no attempt to establish that any documents beyond
those sought by Request No. 5 are relevant to his claims, Montgomery has conceded that which is
clear from a reading of the Subpoena: the other documents sought from Bennett have no possible
relevance to his claims.
Further, a review of the record establishes that the actual reasons S&S did not publish
Risens book are both well known to Montgomery and irrelevant to his claims. Montgomery
contends that S&Ss reasons are relevant because they will likely show that [the S&S Parties]
rejected publication because [they] saw and determined that The Book was defamatory toward Mr.
Montgomery and/or contained classified government information that could subject them to civil
and criminal liability, if not prosecution. (Moving Br. at 4.) But as the S&S Parties brief
demonstrates, the deposition testimony of Bruce Nicholswho was Houghton Mifflins editor for
Pay Any Price and previously worked at S&S, where he was the editor of Risens earlier book
refutes that contention. (Dkt. #5 at 5.) Specifically, Nichols testified that Bennett approached him
when Risens relationship with [S&S] was beginning to break down, (Moving Br., Ex. 8 at
23:17-18); that Risen and S&S could not agree on how to structure [the book] or when to publish
it, (id. at 28:16-19); and [t]hats why Pay Any Price became available to Houghton Mifflin, (Id.
at 28:19-20). Thus, the deposition testimony already available to Montgomery makes clear that
the actual reasons S&S did not publish Pay Any Pricethe only subject on which Montgomery
claims Bennett has pertinent knowledgehave nothing to do with his claims.
As a result, Montgomery has not established, as he must, that the documents and testimony
sought by the Subpoena are relevant to his claims. Accordingly, the Subpoena is oppressive and
11
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
16 of 22 Page 48 of
78
unduly burdensome. See Concord Boat, 169 F.R.D. at 50 (a subpoena that sweepingly pursues
material with little apparent or likely relevance is more likely to be overbroad and
unreasonable). The Court should thus quash the Subpoena in its entirety.
B.
In The Alternative, The Court Should Limit The Subpoenas Scope To

Documents And Testimony Related To S&Ss Reasons For Not
Publishing Risens Book.
Even if the Court were inclined to permit Montgomery to depose Bennett on the narrow
and previously explained reasons why S&S did not ultimately publish Pay Any Price, it should
limit the Subpoenas scope to documents and testimony relating to those reasons (Request No. 5
of the Subpoena). The twenty-two other categories of documents and testimony demanded by
Montgomery simply have no conceivable relevance to his claims and are thus overbroad, unduly
burdensome and, in many instances, duplicative.
Indeed, several of the Subpoenas demands plainly have nothing to do with the reasons
S&S did not publish Risens book and could not possibly have relevance to Montgomerys claims.
For example, the Subpoena seeks documents relating to any contracts between Bennett and S&S,
Houghton Mifflin Harcourt Company or Houghton Mifflin Harcourt Publishing Company,
respectively. (Request Nos. 14, 15, 16 (Moving Br., Ex. 3.) The Subpoena also seeks documents
relating to any contracts between S&S and Risen (Request No. 6), any payments made by
Houghton Mifflin to S&S (Request No. 12), and copyrights and other intellectual property rights
concerning Risens book (Request No. 23). That these categories of documents have nothing to
do with the only subject on which Bennett may possess arguably relevant knowledge (or, for that
matter, Montgomerys claims in general) requires little explanation. Indeed, neither (a) contracts
between Bennett and the Houghton Mifflin companies or S&S; nor (b) contracts between Risen
and S&S, could possibly have anything to do with the reasons S&S did not publish the book or
12
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
17 of 22 Page 49 of
78
otherwise bear on Montgomerys claims.6 The same can be said for payments from Houghton
Mifflin to S&S and the intellectual property rights for Risens book. Montgomerys request for
these irrelevant documents is a classic fishing expedition and should be rejected as such. See
Collens v. City of New York, 222 F.R.D. 249, 253 (S.D.N.Y. 2004) (holding that courts should
not grant discovery requests based on pure speculation that amounts to nothing more than a fishing
expedition).
Further, sixteen of the Subpoenas document requests are simultaneously duplicative and
overbroad (and thus unduly burdensome) in that they seek some of the same documents sought by
Request No. 5 (which, again, asks for documents related to S&Ss decision not to publish Risens
book), while also seeking other irrelevant documents.7 For example, Request No. 8 seeks all
While these demands would not yield any relevant information, they would very likely result in
the production of confidential and highly sensitive business information concerning unrelated
matters.
Specifically, these demands seek documents that refer or relate to Dennis Montgomery, (No.
1); communications to and from James Risen concerning Dennis Montgomery (No. 2);
communications with Houghton Mifflin Harcourt Company concerning Dennis Montgomery
(No. 3); communications with Houghton Mifflin Harcourt Publishing Company concerning
Dennis Montgomery (No. 4); why Priscilla Painton and Simon & Schuster decided not to publish
James Risens book Pay Any Price (No. 7); communications between Priscilla Painton and Tina
Bennett (No. 8); communications between Priscilla Painton and James Risen (No. 9);
communications between James Risen and Priscilla Painton regarding confidential sources (No.
10); communications between James Risen and Priscilla Painton regarding classified material
and/or sources (No. 11); the preliminary measures Simon & Schuster took in order to publish
Pay Any Price (No. 13); communications by and between Tina Bennett and James Risen
regarding Simon & Schuster (No. 17); communications between you and James Risen regarding
Houghton Mifflin Harcourt Company (No. 18); communications between you and James Risen
regarding Houghton Mifflin Harcourt Publishing Company (No. 19); Tina Bennett deciding to
contact Houghton Mifflin Harcourt Company and/or Houghton Mifflin Harcourt Publishing
Company for James Risen and his book Pay Any Price (No. 20); Tina Bennett deciding to leave
negotiations at Simon & Schuster in furtherance of a contract with either Houghton Mifflin
Harcourt Company or Houghton Mifflin Harcourt Publishing Company (No. 21); and Bruce
Nichols concerning Pay Any Price (No. 22).
13
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
18 of 22 Page 50 of
78
communications between Priscilla Painton and Tina Bennett. While some communications
between Painton and Bennett might relate to S&Ss reasons for not publishing the book, many
surely do not; since Painton is the editor of many different literary works and Bennett is the agent
of many different authors, it is entirely possible that many of their communications do not even
relate to Risen. This is equally true of every other demand listed in footnote 7: some responsive
documents might conceivably relate to S&Ss decision not to publish Risens book (and thus
would be covered by Request No. 5), but a great many more would likely not. To the extent these
requests call for documents relating to S&Ss decision not to publish the book, they are duplicative
of Request No. 5. And to the extent they call for documents that do not relate to S&Ss decision,
they are irrelevant, overbroad and unduly burdensome.
It would unnecessarily burden Bennett, who is not a party to the underlying lawsuit, to
require her to respond to and provide testimony regarding each of Montgomerys twenty-three
categories. Most, if not all, of the demands would likely call for the production of documents that
are not in Bennetts possession but rather are stored or held elsewhere at WME and maintained by
various people within the agency. For example, while Bennett might have in her personal files
some documents that would qualify as relating to Bruce Nichols concerning Pay Any Price
(Request No. 22) and copyrights and other intellectual property rights concerning Pay Any Price
(Request No. 23), it is also possible, if not likely, that documents responsive to those demands
would be stored or filed elsewhere in the agency. To ensure that Bennett responded in full to
Montgomerys demands, it would be necessary for her and WME to conduct an exhaustive and
extensive search of a wide array of WME files and servers. Given that the Subpoenas demands
have no relevance to Montgomerys claims, it would be entirely inappropriate to place such an
14
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
19 of 22 Page 51 of
78
undue and oppressive burden on a non-party. See Concord Boat, 169 F.R.D. at 53 (quashing
subpoena that would have subjected a non-party to undue burden).
For all of these reasons, if the Court does not quash the Subpoena in its entirety, it should
modify the Subpoena so as to limit it to documents and testimony relating to Simon & Schusters
decision not to publish Pay Any Price.8
III.
THE COURT SHOULD DENY MONTGOMERYS REQUEST TO DEPOSE

BENNETT BY VIDEOCONFERENCE.
In the event the Court elects to permit Bennetts deposition to proceed at all, it should deny
Montgomerys request to depose her by videoconference. Federal Rule of Civil Procedure

30(b)(4) provides that [t]he parties may stipulateor the court may on motion orderthat a
deposition be taken by telephone or other remote means. While the burden rests on the party
objecting to depositions by remote means to show why the depositions should proceed in the
traditional manner, Advani Enters. v. Underwriters at Lloyds, No. 95-cv-4864, 2000 U.S. Dist.
LEXIS 15421, at *6 (S.D.N.Y. Oct 18, 2002), leave to conduct a deposition by teleconference or
other remote means should be denied where the witness will likely be prejudiced or the method
employed would not reasonably ensure accuracy and trustworthiness, Firemans Fund Ins. Co. v.
Zoufaly, No. 93-cv-1890, 1994 U.S. Dist. LEXIS 15055, at * 1 (S.D.N.Y. Oct. 21, 1994).
Prejudice may lie where the documents intended to be introduced at the deposition are voluminous
and central to the cases issues. Id. at *2. For example, in Mercado v. Transoceanic Cable Ship
Co., No. 88-cv-5335; 1989 U.S. Dist. LEXIS 8484 (E.D. Pa. July 25, 1989), the court denied leave
to conduct a telephonic deposition, finding sufficient prejudice because the intended use of
The Subpoena should further be limited in keeping with the objections lodged by the S&S Parties
and Houghton Mifflin.
15
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
20 of 22 Page 52 of
78
relevant diagrams and photographs during the deposition created a real likelihood of confusion.
Id. at *3.
Here, Bennett will suffer significant prejudice if her deposition proceeds by
videoconference because (a) Montgomery clearly intends to introduce and examine her regarding
numerous documents; and (b) the deposition is certain to proceed in a cumbersome and highly
confusing manner. That Montgomery intends for Bennetts deposition to be a document intensive
affair is clear from the Subpoena itself, which demands twenty three broad categories of
documents. Bennetts production thus may well consist of a large number of communications,
many of which Montgomerys counsel will introduce and use at her deposition. In his Moving
Brief, Montgomery contends that the documents he seeks from Bennett are critical to his claims
and go to a core issue of the case. (Moving Br. at 5.) As in Mercado, extensive questioning of
Bennett via videoconference about documents of such purportedly high relevance creates a real
likelihood of confusion and significant prejudice. See 1989 U.S. Dist. LEXIS 8484 at *3.
The fear that a videoconference deposition will quickly descend into confusion, delay and
prejudice is not merely abstract or theoretical in light of the manner in which Montgomerys
counsel has conducted earlier videoconference depositions in this action. As an accommodation,
Houghton Mifflin permitted Montgomerys counsel to conduct two Rule 30(b)(6) depositions by
videoconference in mid-October. As Houghton Mifflins current objection demonstrates (Moving
Br., Ex. 11), Montgomerys counsel made no effort to ensure that those videoconference
depositions, which involved numerous documents, proceeded in an organized and orderly fashion,
as his counsel was unprepared to conduct the [first] deposition, having made no arrangements for
the court reporter to receive or mark documents as exhibits at the deposition. (Id., 3.)
16
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
21 of 22 Page 53 of
78
Specifically, rather than provide copies of the exhibits to the court reporter prior to the first
deposition, Montgomerys counsel sent Houghton Mifflins counselin a series of emails
beginning at 8:36 p.m. the night before the deposition and continuing until 10:12 a.m. the day of
the deposition (less than an hour before the scheduled start time)twenty-five documents he
advised would be used at the deposition; as a result, a staff member from Houghton Mifflins
counsel was at the office until 11:00 p.m. printing copies. (Id., 7.) The same thing happened
the next night prior to the second Rule 30(b)(6) deposition, as Montgomerys counsel emailed
seventeen additional exhibits in a series of emails between 5:57 p.m. and 7:44 p.m. (Id.) Because
Montgomerys counsel had made no effort to provide the court reporter with his exhibits in
advance and in an orderly fashion, Houghton Mifflins counsel was forced during the depositions
to sift through dozens of proposed exhibits to find the one Montgomerys counsel intended to
introduce and then hand it to the court reporter for identification. That slipshod and ill-conceived
manner of proceeding caused significant delay, confusion and prejudice to Houghton Mifflin and
the deponents. (See id., 5.) It should not be permitted to occur again. The Court should therefore
deny Montgomerys motion for leave to depose Bennett by videoconference, and should instead
require that he attend in person any deposition that Court allows to proceed.
17
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
14 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
22 of 22 Page 54 of
78
CONCLUSION
For the reasons set forth above, the Court should deny Montgomerys motion to compel
compliance with the Subpoena because he failed to properly serve that Subpoena; should either
quash the Subpoena altogether or limit its scope to documents and testimony related to Simon &
Schusters decision not to publish Pay Any Price, subject to the objections of the Simon & Schuster
parties and the Houghton Mifflin Defendants, and should not permit the deposition to proceed via
videoconference.
Dated: November 23, 2015
MARINO, TORTORELLA & BOYLE, P.C.
By:
/s/ Kevin H. Marino

Kevin H. Marino
437 Southern Boulevard
Chatham, New Jersey 07928-1488
Attorneys for Defendant Tina Bennett
18
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
22 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
1 of 25 Page 55 of
78

SOUTHERN DISTRICT OF NEW YORK
X
Plaintiff,
v.
SIMON & SCHUSTER,
and
PRISCILLA PAINTON,
and
TINA BENNETT,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
Civil Action No. 15-mc-00363-P1
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF

DENNIS L. MONTGOMERYS MOTION TO COMPEL

Laura R. Handman (Bar No. LRH5353)
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants James Risen,
Houghton Mifflin Harcourt Publishing Co.
and Houghton Mifflin Harcourt Co.
in Montgomery v. Risen, et al.,
Case No. 15-cv-20782 (S.D. Fla.)
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
22 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
2 of 25 Page 56 of
78
TABLE OF CONTENTS
Page
I.
INTRODUCTION .............................................................................................................. 1
II.
THE APPLICABLE REPORTERS PRIVILEGE AND SHIELD LAW PROHIBITS

DISCLOSURE OF INFORMATION PLAINTIFF SEEKS............................................... 2
III.
A.
New York or D.C. Law Not Florida Law Applies to this Dispute ................... 3
B.
Plaintiff Cannot Overcome the Applicable Reporters Privilege and Shield

Law ......................................................................................................................... 6
THE COURT SHOULD NOT PERMIT PLAINTIFF TO DEPOSE THE NONPARTIES BY VIDEOCONFERENCE OR OTHER REMOTE MEANS ......................... 9
A.
Mr. Klaymans Abuse of Videoconference Depositions in this Action ................. 9
B.
The Court Should Deny Plaintiffs Request to Take Depositions by

Videoconference Because Such a Remote Deposition Will Cause Prejudice ...... 13
IV.
MR. KLAYMAN SHOULD NOT BE PERMITTED TO PARTICIPATE IN ANY

HEARING OR BE PERMITTED TO APPEAR PRO HAC VICE .................................. 16
V.
CONCLUSION ................................................................................................................. 18
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
22 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
3 of 25 Page 57 of
78
Page(s)
Federal Cases
In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001,
241 F.R.D. 202 (S.D.N.Y. 2007) ...............................................................................................6
Allison v. Clos-ette Too, L.L.C.,
2015 WL 136102 (S.D.N.Y. Jan. 9, 2015) ................................................................................1
In re Application to Quash Subpoena to Natl Broad. Co.,
79 F.3d 346 (2d Cir. 1996).........................................................................................................8
AroChem Intl, Inc. v. Buirkle,
968 F.2d 266 (2d Cir. 1992).......................................................................................................4
Baldwin Hardware Corp. v. Franksu Enter. Corp.,
78 F.3d 550 (Fed. Cir. 1996)....................................................................................................18
Clinton v. California Dept of Corrs.,
2009 WL 210459 (E.D. Cal. Jan. 20, 2009) ............................................................................14
Collins v. Williams,
575 F. Supp. 2d 610 (D. Del. 2008) .........................................................................................15
Edmonds v. Seavey,
2009 WL 1285526 (S.D.N.Y. May 5, 2009), affd, 2009 WL 2150971
(S.D.N.Y. July 20, 2009), affd, 379 F. Appx 62 (2d Cir. 2010)............................................15
Estate of Gerasimenko v. Cape Wind Trading Co.,
272 F.R.D. 385 (S.D.N.Y. 2011) .............................................................................................13
Grunseth v. Marriott Corp.,
868 F. Supp. 333 (D.D.C. 1994) ............................................................................................7, 8
Lego v. Stratos Lightwave, Inc.,
224 F.R.D. 576 (S.D.N.Y. 2004) ...............................................................................................3
MacDraw, Inc. v. CIT Group Equip. Financing Inc.,
994 F. Supp. 447, 455 (S.D.N.Y. 1997), affd, 138 F.3d 33, 37 (2d Cir. 1998) ......................17
Melendres v. Arpaio,
No. 2:07-cv-02513-GMS (D. Ariz. Aug. 11, 2015), appeal pending,
No. 15-72440 (9th Cir. Aug. 8, 2015)......................................................................................17
Mercado v. Transoceanic Cable Ship Co.,
1989 WL 83596 (E.D. Pa. 1989) .............................................................................................14
ii
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
22 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
4 of 25 Page 58 of
78
Montgomery v. Risen,
No. 15-cv-20782-JEM (S.D. Fla. filed Feb. 24, 2015) .................................................... passim
Peterson v. Katonah Lewisboro Sch. Dist.,
2014 WL 3891253 (S.D.N.Y. June 27, 2014) ...........................................................................1
Roger Dubuis N. Am., Inc. v. Thomas,
2006 WL 3199141 (M.D. Pa. Nov. 3, 2006) ...........................................................................15
Rosario v. Anson,
2014 WL 4418052 (N.D.N.Y. Sept. 8, 2014) ..........................................................................14
Stephens v. 1199 SEIU,
2011 WL 2940490 (E.D.N.Y. July 19, 2011) ....................................................................13, 14
Stephens v. Am. Home Assurance Co.,
1995 WL 230333 (S.D.N.Y. Apr. 17, 1995)..........................................................................3, 4
Stern v. News Corp.,
2008 WL 10712037 ( S.D. Fla. Aug. 26, 2008).......................................................................17
Stern v. News Corp.,
No. 1:08-cv-07624-DAB-RLE (S.D.N.Y. May 13, 2009).......................................................17
Tartaglia v. Paul Revere Life Ins. Co.,
948 F. Supp. 325 (S.D.N.Y. 1996) ............................................................................................3
United States v. $160,066.98 from Bank of Am.,
202 F.R.D. 624 (S.D. Cal. 2001) .............................................................................................14
Versace v. Versace,
2003 WL 1937201 (S.D.N.Y. Apr. 23, 2003)..........................................................................16
State Cases
People v. Wolf,
329 N.Y.S.2d 291 (Sup. Ct. N.Y. Cnty. 1972), affd, 39 A.D.2d 864 (1972) ...........................7
Stern v. Burkle,
2007 WL 2815139 (Sup. Ct. N.Y. Cnty. Sept. 7, 2007) ..........................................................17
State Statutes
D.C. Code 16-4702(1)...............................................................................................................7, 8
D.C. Code 16-4703 ...................................................................................................................7, 8
Fla. Stat. 90.5015 ..........................................................................................................................9
iii
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
22 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
5 of 25 Page 59 of
78
N.Y. Civil Rights Law 79-h(c) .....................................................................................................7

Rules
Federal Rule of Civil Procedure 30(b)(4) ......................................................................................13
Federal Rule of Civil Procedure 30(b)(6) .............................................................................. passim
S.D.N.Y. Local Civil Rule 1.3(c)...................................................................................................16
Other Authorities
Moores Federal Practice, 30-24[1] (3d ed. 2014) ....................................................................14
iv
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
22 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
6 of 25 Page 60 of
78
I.
INTRODUCTION
James Risen, Houghton Mifflin Harcourt Publishing Company (HMH), and Houghton
Mifflin Harcourt Company (HMHC), improperly sued as HMH Holdings, Inc. each a
defendant (collectively, Defendants) in the action Montgomery v. Risen, No. 15-cv-20782-JEM
(S.D. Fla. filed Feb. 24, 2015) (the Underlying Action) hereby file this memorandum of law
in opposition to Plaintiff Dennis L. Montgomerys Emergency Motion to Compel Non-parties
Tina Bennett, Priscilla Painton and Simon & Schuster (S&S) to Comply with Properly-Served
Subpoenas and Motion to Take the Depositions by Videoconference and Request for Emergency
Telephonic Hearing (the Motion to Compel).
Non-parties S&S, Painton, and Bennett (the Non-parties) have ably stated why the
Court should deny the Motion to Compel and should grant their motions to quash the subpoenas
improperly served on them. See S&S & Painton Mem. Law Opp. Mot. to Compel, ECF No. 5
(S&S & Painton Opp.); Bennett Mem. Law Opp. Mot. to Compel, ECF No. 14 (Bennett
Opp.). Defendants also object to the subpoenas and oppose the Motion to Compel for three
main reasons.
First, the subpoenas seek from all the Non-parties documents regarding any
communications that Risen may have had with Painton on confidential sources and
classified material and/or sources. Any such communications are protected by the applicable
reporters privilege and shield law, which protect Risens newsgathering material and sources. 1
Because Risen raises a privilege with regard to the information Plaintiff seeks, Risen has
standing to object to the subpoenas. See Allison v. Clos-ette Too, L.L.C., 2015 WL 136102, at *7
(S.D.N.Y. Jan. 9, 2015) (A party generally lacks standing to challenge a subpoena served on a
non-party unless the objecting party has a personal right or privilege in the information
sought.); Peterson v. Katonah Lewisboro Sch. Dist., 2014 WL 3891253, at *1 (S.D.N.Y.
June 27, 2014) (A party has standing to object to a non-party subpoena only if the objecting
party has a privilege, privacy interest, or proprietary interest in the information sought.).
1
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
22 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
7 of 25 Page 61 of
78
Second, the subpoenas purport to state that the Non-parties depositions will be taken by
videoconference. In discovery taken in the Underlying Action, Mr. Klayman deposed by
videoconference the Rule 30(b)(6) representative of both HMH and HMHC. Over the course of
scheduling and taking those depositions, Mr. Klayman engaged in highly objectionable conduct,
including: (1) unilaterally and over Defendants objection cancelling the depositions shortly
before they were scheduled to take place; (2) failing to have any exhibits prepared and delivered
to the court reporter, instead relying on Defendants to copy and supply the court reporter and the
witness with the exhibits; and (3) insisting on two days of deposition that took a total of fewer
than four hours, abruptly ending the first day after fewer than 2.5 hours and then addressing
questions the second day that should have been raised on the first day. This conduct, a
consequence of deposition by remote means, has prejudiced Defendants, causing unnecessary
time, fees and expenses, and significantly impeded the efficient conduct of discovery.
Accordingly, Defendants object to Plaintiff taking the third-party depositions by remote means,
as has S&S, Painton, and Bennett.
Third, to the extent that Plaintiffs counsel in the Underlying Action, Larry E. Klayman,
seeks to participate or appear at any hearing, telephonic or otherwise, on the Motion to Compel,
he should not be permitted to do so because he has not appeared pro hac vice and any request to
appear pro hac vice should be denied. He has been denied pro hac vice status in this Court and
other federal courts across the country over the course of the past 19 years.
Defendants will address each of these separate objections, in turn.
II.
THE APPLICABLE REPORTERS PRIVILEGE AND SHIELD LAW

PROHIBITS DISCLOSURE OF INFORMATION PLAINTIFF SEEKS
In his Motion to Compel, Plaintiff, relying solely on Florida law, asserts that the Non-
parties objection to the subpoenas based on the applicable reporters privilege should be
2
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
22 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
8 of 25 Page 62 of
78
overruled because the privilege does not apply or should be overcome. See Mot. to Compel at
10-11. As stated by the Non-parties, see S&S & Painton Opp. at 13-19, Bennett Opp. at 3 n.1,
Plaintiffs arguments fail.
Risen has also objected based on the applicable reporters privilege and shield law,
because the subpoenas seek documents from the Non-parties about any communications Risen
may have had with Painton on confidential sources and classified material and/or sources.
See Mot to Compel, Ex. 11, Letter from Laura R. Handman to Larry Klayman 4 (Oct. 30, 2015).
Below, Risen explains that Plaintiff is incorrect that Florida law applies to this discovery
dispute. Mot. to Compel at 10. Risen also explains that Plaintiff may not, at any rate,
overcome the applicable reporters privilege and shield law.
A.
New York or D.C. Law Not Florida Law Applies to this Dispute
Plaintiff argues that because Florida law, he claims, applies to this defamation action,
then Florida law must also apply to this discovery dispute. See Mot. to Compel at 10. Plaintiffs
choice-of-law analysis is misguided.
The Non-parties have described the correct choice-of-law analysis. See S&S & Painton
Opp. at 14-15. A federal court sitting in diversity must apply the choice-of-law rules of the
state in which it sits here, New York to determine which states privilege law applies.
Stephens v. Am. Home Assurance Co., 1995 WL 230333, at *7 (S.D.N.Y. Apr. 17, 1995) (citing,
inter alia, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). This rule is so even
though the Underlying Action was brought in the Southern District of Florida: Where the court
hearing the discovery dispute and the court hearing the underlying action differ, the court hearing
the discovery dispute must apply the choice of law rules of its forum. Lego v. Stratos
Lightwave, Inc., 224 F.R.D. 576, 578 n.7 (S.D.N.Y. 2004) (citation omitted); see also Tartaglia
v. Paul Revere Life Ins. Co., 948 F. Supp. 325, 32627 (S.D.N.Y. 1996).
3
Case 1:15-mc-00363-P1
Document 187-2
Document
Entered
22 Filed
on FLSD
11/23/15
DocketPage
12/04/2015
9 of 25 Page 63 of
78
As the Non-parties have also stated, in tort actions, such as this one, New York applies a
so-called interest analysis. AroChem Intl, Inc. v. Buirkle, 968 F.2d 266, 270 (2d Cir. 1992).
Because privilege rules regulate conduct, New York applies the law of the locus of the
conduct at issue, because of [the locus jurisdictions] interest in affecting the conduct of those
who act within the jurisdiction and of a reliance interest on the part of the actors whose conduct
is at issue. Stephens, 1995 WL 230333, at *7 (alteration in original) (quoting AroChem, 968
F.2d at 270).
Using this analysis, the Non-parties have ably described why New York law not Florida
law should apply, and why the subpoenaed information is protected by the absolute and
qualified privileges provided by New Yorks shield law. See S&S & Painton Opp. at 13-19. The
same analysis applies to Risens assertion of the applicable reporters privilege and shield law.
All of Risens relevant conduct underlying Plaintiffs defamation action took place chiefly in
Washington, D.C. Risen gathered documents and information, including about Plaintiff, while
working in Washington, D.C. and in Maryland, where he lives. See Docket of Underlying
Action, Risen Decl. 2, 8, ECF No. 52-1, a true and correct copy of which is attached as
Exhibit 1 hereto. Risen did much of the newsgathering for the Chapter about Plaintiff for his
earlier New York Times article while in the D.C. bureau of the New York Times. See id. 8.
And of particular importance here Risen interviewed key sources located in or near
Washington, D.C., California, New York, and Washington State. See id. In short, the locus of
the conduct affected, and the reliance interest on the part of whose conduct is at issue, is in New
York or, in Risens case, also in Washington, D.C.
The locus of the relevant conduct is not in Florida and Plaintiff does not claim
otherwise. Instead, in arguing that Florida law applies to this discovery dispute, Plaintiff
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
10 of 25 Page 64 of
78
misguidedly focuses on the alleged defamatory conduct of Defendants, and on where Plaintiff is
allegedly a citizen. See Mot. to Compel at 10. But even if the alleged defamation and the place
of Plaintiffs citizenship were the conduct relevant to this dispute concerning the application of
the reporters privilege it is not Plaintiff wholly fails to establish that Florida law would
apply to that conduct. True, the case was filed and is being litigated in the Southern District of
Florida. Id. But Plaintiff puts forth no evidence supporting his bald assertion that the
defamation largely occurred there. Id. To begin with, none of the Defendants has any relevant
connection to Florida. Risen is not a Florida resident and, with one minor exception, none of
Risens newsgathering, preparing, and promoting of the Chapter took place in Florida, and the
focus of the Chapter is decidedly not in Florida. See Docket of Underlying Action, Defs. Mot. to
Dismiss 4-8, ECF No. 52, a true and correct copy of which is attached as Exhibit 1 hereto. And
neither HMH, the publisher of the Book, nor HMHC, a holding company, is incorporated or has
its principal place of business in Florida. See id. 4. Plus, even though Plaintiff claims to be a
citizen of Florida and has done substantial business there, Mot. to Compel at 10, neither
appears to be true. Discovery [in this case] has confirmed that Plaintiff did not live in Florida
during any time relevant to [the alleged defamatory conduct] (or since). Docket of Underlying
Action, Notice of Suppl. Authority Concerning Defs. Mot. to Dismiss or Transfer 2, ECF No.
118 (emphasis omitted), a true and correct copy of which is attached as Exhibit 2 hereto.
Instead, events and facts revealed during discovery demonstrate that Plaintiff was, and is, in
fact, domiciled in Washington [State]. Id. 3 (emphasis omitted). And Plaintiff has failed to
identify any substantial business that he allegedly has done or will be doing in Florida. 2
Defendants motion to transfer (to D.C.) or dismiss asserting lack of personal jurisdiction,
improper venue, inconvenient forum and failure to state a claim was initially filed on April 9,
2015. A similar motion was filed on May 15 after Plaintiff served an Amended Complaint on
5
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
11 of 25 Page 65 of
78
Without any evidentiary support, Plaintiff imagines that, because Florida has intelligence
and military communities and retirees, the book must have sold well there. Motion to Compel at
10. But sales in Florida of the book have no bearing on which states shield law applies in a
discovery dispute in New York to newsgathering conduct that did not occur in Florida.
As the foreign laws proponent, it is [plaintiffs] burden to show that New Yorks choice
of law rules would lead to application of [Floridas] reporters privilege. In re Air Crash at
Belle Harbor, N.Y. on Nov. 12, 2001, 241 F.R.D. 202, 204 (S.D.N.Y. 2007). Here, Plaintiff has
wholly failed to carry this burden.
B.
Plaintiff Cannot Overcome the Applicable Reporters Privilege and Shield

Law
Under either New York law or Washington, D.C. law, certain of the information that
Plaintiff seeks from the Non-parties is protected from disclosure.
The subpoenas request that each of the Non-parties produce [a]ny and all documents
that refer or relate in any way to the communications between James Risen and Priscilla Painton
regarding confidential sources and regarding classified material and/or sources. See Painton
Subpoena Reqs. 10-11; S&S Subpoena Reqs. 10-11; Bennett Subpoena Reqs. 10-11. This
information is protected from disclosure.
April 28, 2015. The motion has been fully submitted and pending since June 11. Defendants
also have moved before the magistrate judge for sanctions of dismissal for violating court orders
and for spoliation of what the magistrate judge called the critical evidence. That motion will
be fully briefed by November 30, 2015 (ECF No. 166). Defendants motion for a stay of
discovery pending the motion to transfer or dismiss, opposed by Plaintiff, was denied on
September 10, 2015 (ECF No. 130) and the court, at Plaintiffs request, set an expedited
discovery and trial schedule due to Plaintiffs poor health. The deadline for discovery in the
Underlying Action, November 19, 2015, has now passed. Plaintiff filed a request for extension
of discovery and supplement on November 17 and 19 (ECF Nos. 181 and 182). Defendants
intend to file an opposition. A true and correct copy of the docket in the Underlying Action (No.
15-cv-20782-JEM) is attached as Exhibit 3 hereto.
6
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
12 of 25 Page 66 of
78
Under New Yorks shield law, two elements must be established to raise a claim of
absolute privilege: first, the information or its sources must be imparted to the reporter under a
cloak of confidentiality, i.e., upon an understanding, express or implied, that the information or
its sources will not be disclosed; and second, that the information or its sources must be obtained
in the course of gathering of news for publication. People v. Wolf, 329 N.Y.S.2d 291, 297 (Sup.
Ct. N.Y. Cnty. 1972) (citing N.Y. Civil Rights Law 79-h), affd, 39 A.D.2d 864 (1972). As the
Non-parties observed, there can be no dispute that the language in the requests themselves asks
for production of materials that would have had to have been imparted to Mr. Risen under a
cloak of confidentiality, whether confidential sources or classified material or sources. S&S &
Painton Opp. at 15.
Similarly, Washington, D.C.s shield law protects any person who is or has been
employed by the news media in a news gathering or news disseminating capacity [from having]
to disclose the source of any news or information procured by the person while employed by
the news media and acting in an official news gathering capacity, whether or not the source has
been promised confidentiality. D.C. Code 16-4702(1), 16-4703(b). In sum, the D.C.
statute accords total protection to news sources, whether confidential or not, and whether
disclosed to others or not. Thus, by its clear wording, the statute . . . gives an absolute privilege
for all news sources. Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994). Here,
too, the Washington, D.C. shield law gives total protection from having to disclose the
information Plaintiff seeks in his requests: confidential sources and classified material and/or
sources.
Both New York and D.C. shield laws also provide a qualified privilege for nonconfidential newsgathering material. N.Y. Civil Rights Law 79-h(c) (to overcome the qualified
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
13 of 25 Page 67 of
78
privilege, party must make a clear and specific showing that the news: (1) is highly material
and relevant; (2) is critical or necessary to the maintenance of a partys claim; and (3) is not
obtainable from any alternative source); In re Application to Quash Subpoena to Natl Broad.
Co., 79 F.3d 346, 351-53 (2d Cir. 1996); D.C. Code 16-4702(2), 16-4703(a)(1)-(3) (to
overcome the qualified privilege, party has the burden of establishing, by clear and convincing
evidence, that: (1) the news or information is relevant to a significant legal issue before a
judicial, legislative, administrative or other body that has the power to issue a subpoena; (2) the
news or information could not, with due diligence, be obtained by any alternative means; and (3)
there is an overriding public interest in the disclosure); Grunseth, 868 F. Supp. at 336-37. To
overcome that privilege, as the Non-Parties explain, the plaintiff must show his claim virtually
rises and falls on the evidence sought. S&S & Painton Opp. at 17-18.
Citing Florida law, Plaintiff claims that the reporters privilege should give way here
because discovering information about these sources and material is the only way Plaintiff could
prove actual malice. See Mot. to Compel at 11 (quoting News-Journal Corp. v. Carson, 741
So. 2d 572, 576 (Fla. Dist. Ct. App. 1999)). This is nonsense, because the information that
Plaintiff seeks here is irrelevant. Risen, it must be made clear, has not asserted any reporters
privilege to prevent disclosure of any sources or material that he used in preparing the Chapter.
See Docket of the Underlying Action, Defs. Obj. to Pl.s Modified Notice of Telephonic Hrg 4,
ECF No. 172 (Risen and HMH already disclosed the sources and newsgathering materials
underlying the chapter of the Book in suit to Plaintiff, but asserted the reporters privilege and
shield law as to the remaining chapters of the Book and other books and articles by Risen.);
Email from Laura Handman to Larry Klayman (Nov. 3, 2015), a true and correct copy of which
is attached as Exhibit 4 hereto. Stated differently, Risen has not refused to disclose any
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
14 of 25 Page 68 of
78
information that is relevant to this action on the basis of a reporters privilege. But Plaintiffs
requests go far beyond that which is relevant to his case. Thus, even in the limited circumstance
in which a party may overcome Floridas qualified journalists privilege, Plaintiff could not do
so, because Plaintiff has not and cannot make a clear and specific showing that the information
sought is relevant and material to unresolved issues that have been raised in the proceeding for
which the information is sought. Fla. Stat. 90.5015.
Plaintiff chose not to ask any of the questions about the publishing deal with Simon &
Schuster which he now claims are so crucial when Risen, the author, was deposed on June 19,
2015 for seven hours. This is all the more remarkable because the publishing agreement with
HMH was produced in discovery to Plaintiff 3 and introduced as an exhibit at Mr. Risens
deposition. No questions were asked about any arrangement with S&S, even though the
agreement on its face made reference to payments being directed to S&S. Risen Dep. Ex. 8,
Publishing Agreement 1D(1). See Exhibit B to Declaration of Bruce Rosen in Support of
Emergency Motion to Quash, ECF No. 10.
III.
THE COURT SHOULD NOT PERMIT PLAINTIFF TO DEPOSE THE

NON-PARTIES BY VIDEOCONFERENCE OR OTHER REMOTE MEANS
Defendants oppose Plaintiffs attempt to depose the Non-parties by videotape or other
remote means.
A.
Mr. Klaymans Abuse of Videoconference Depositions in this Action
As a courtesy, Defendants stipulated tacitly to allowing Plaintiff to take Rule 30(b)(6)

depositions of HMH (the operating company) and HMHC (the holding company) by
videoconference. See Mot. to Compel, Ex. 11, Letter from Laura R. Handman to Larry Klayman
1 (Oct. 30, 2015) (Oct. 30 Letter). But Mr. Klaymans conduct in those depositions detailed in
3
The publishing agreement between HMH and Risen was marked confidential and produced
pursuant to a Protective Order (ECF No. 89).
9
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
15 of 25 Page 69 of
78
the Oct. 30 Letter underscores why such a method of proceeding by videoconference or other
remote means is objectionable and should not be permitted. Videoconferencing has enabled
Mr. Klayman to waste Defendants and their counsels time and money and inhibit the efficient
conduct of discovery.
Without offering a reason, and over Defendants objection, Mr. Klayman cancelled (at
6:06 p.m.) on September 16, 2015, the Rule 30(b)(6) depositions of both the operating and
holding companies, both scheduled for Boston on September 18, 2015, to be conducted by
videoconference. Id. 2. 4 Plaintiff re-noticed the Rule 30(b)(6) depositions in New York where
the witness was located for two separate days, October 14 and 15, asserting he now had seven
hours of questions for each of the Rule 30(b)(6) deponents. Id. Mr. Klayman noticed each to
commence at 11:00 a.m. a time convenient for the West Coast, where Mr. Klayman is believed
often to reside, but inconvenient for an East Coast deposition designed to go seven hours
exclusive of breaks. Id. 5
Mr. Klayman was totally unprepared to conduct the deposition, having made no
arrangements for the court reporter to receive or mark documents as exhibits at the deposition.
Id. At 2:56, Mr. Klayman abruptly stopped the deposition of HMH (the operating company)
when the witness was instructed not to answer questions on a topic that Magistrate Judge
Jonathan Goodman of the Southern District of Florida had struck and, accordingly, Plaintiff had
removed from the re-noticed 30(b)(6) depositions list of topics. Id. Mr. Klayman refused to ask
Plaintiff has, to date, refused to reimburse Defendants for the non-recoupable expenses
($499.00) that Defendants incurred because of Plaintiffs untimely and unilateral cancellation.
Id.
5
When Defendants arrived on time for the 11:00 a.m. start on October 14, the equipment for
videoconferencing was malfunctioning and the deposition could not begin until 11:37 a.m. Id.
10
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
16 of 25 Page 70 of
78
any additional questions and exited the deposition despite Defendants encouragement to remain
and ask any other questions he might have. Id. 6
At the Rule 30(b)(6) deposition of the holding company scheduled for October 15,
Mr. Klayman was again unprepared to conduct the deposition, having made no arrangements for
the court reporter to receive or mark documents as exhibits at the deposition or to bring the
exhibits marked the day before. Id. 7 Notwithstanding Mr. Klaymans abrupt departure from the
Rule 30(b)(6) deposition of the operating company the previous day, Defendants permitted the
30(b)(6) witness for the operating company to answer questions that Mr. Klayman logically
should have asked the operating company the day before. Id. 3. While purporting to keep this
second deposition open, Mr. Klayman ended the deposition at 1:58 p.m., including an hours
break for lunch. Id. Clearly, Mr. Klayman could have conducted both depositions on the same
day (the first one lasting less than two and a half hours, the second one less than two hours,
excluding lunch breaks). Id. Instead, Mr. Klayman forced Defendants outside counsel and inhouse counsel to stay overnight in New York an inconvenience Mr. Klayman avoided by
conducting the depositions by videoconference from his home city. Id.
Although it was Plaintiffs burden as the party taking the depositions to have furnished
the exhibits to the court reporter ahead of the depositions, with copies available for opposing
At 12:58 p.m., when Defendants proposed to break for lunch, Mr. Klayman insisted that the
parties go off the record, and Mr. Klayman asked that the parties not stop for lunch and go
straight through until 3:00 p.m., when Mr. Klayman stated he would complete the deposition. Id.
Defendants said it would not be fair to the witness, court reporter, and videographer to skip lunch
so the parties broke for lunch and resumed at 1:56 p.m. Id. Nonetheless, Mr. Klayman ended
the deposition at 3 p.m., the exact time he had earlier announced he would conclude the first day
of deposition.
7
Even after the deposition commenced, Defendants counsel was imposed upon to take a lunch
break shortly before noon and less than an hour after the deposition commenced to accommodate
Mr. Klaymans failure to have asked the court reporter to bring the exhibits from the preceding
day to this deposition. Id.
11
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
17 of 25 Page 71 of
78
counsel, Plaintiff did not provide a single copy of a single exhibit to be introduced at either
deposition. Id. Instead, beginning at 8:36 p.m. on October 13 and continuing until 10:12 a.m.
the morning of the first deposition, Mr. Klayman e-mailed PDFs of 25 exhibits he said he
intended to use in the October 14 deposition. Id. One of the staff in Defendants counsels
office stayed until 11:00 p.m. on October 13 printing the documents and making copies. Id. Had
Defendants not done that and been able to supply copies to the court reporter as exhibits, the
depositions could not have gone forward. Id. The same thing happened the following night,
when Mr. Klayman e-mailed another 17 exhibits between 5:57 p.m. and 7:44 p.m. to use at the
deposition on October 15. Id. Then, at 11:27 p.m., Mr. Klayman advised, without attaching any
PDFs, that he would be using and marking as exhibits the complete copies of the manuscripts
your clients produced. Id.
Because of Mr. Klaymans failure to copy and forward to the court reporter the exhibits
they intended to introduce, Defendants ended up printing and copying thousands of pages of
exhibits Mr. Klayman said he would be using at the depositions. Id. Then, it fell to Defendants
counsel to find the exhibit Mr. Klayman wanted to introduce at each deposition and then hand it
to the court reporter for identification, wasting the time of the court reporter, the witness, and
Defendants counsel. Id. 8
Accordingly, Defendants told Mr. Klayman that they would not stipulate to depositions
taken by videoconferencing or other remote means in the future. Id.
In addition to the non-recoupable fees from the prior cancellation, Defendants have incurred
considerable copying charges. Id. While Plaintiff never even asked Defendants to make these
copies or bring them to the depositions, Defendants counsel anticipated correctly that, had
she not done so, the depositions for which counsel had traveled to New York to attend and the
witness had dedicated his time to appear would have been suspended once again with yet further
delay and cost to Defendants.
12
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
18 of 25 Page 72 of
78
B.
The Court Should Deny Plaintiffs Request to Take Depositions by

Videoconference Because Such a Remote Deposition Will Cause Prejudice
Under Federal Rule of Civil Procedure 30(b)(4) [t]he parties may stipulate or the court
may on motion order that a deposition be taken by telephone or other remote means. There is
no dispute that, under normal circumstances, remote depositions are typically a valid means of
discovery that help save costs (Mot. to Compel at 13-15), which is why Defendants stipulated
with Mr. Klayman to allow him to take the two 30(b)(6) depositions by videoconference. But
remote depositions are not appropriate, when, as here, Mr. Klayman abused those depositions
and caused Defendants prejudice. A court should deny a motion to take a deposition by remote
means when the objecting party will likely be prejudiced or the method employed would not
reasonably ensure accuracy and trustworthiness. Estate of Gerasimenko v. Cape Wind Trading
Co., 272 F.R.D. 385, 390 (S.D.N.Y. 2011) (quoting Memory Film Prods. v. Makara, 2007 WL
1385740, at *2 (E.D.N.Y. May 9, 2007) (same)).
Whether to allow a remote deposition rests in the discretion of the court. Gerasimenko,
272 F.R.D. at 387. In exercising its discretion, the court should careful[ly] weigh[] . . . the
relevant facts (id.) to balance[e] . . . the claims of prejudice and hardship. Stephens v. 1199
SEIU, 2011 WL 2940490, at *1 (E.D.N.Y. July 19, 2011). The Court should deny Plaintiffs
request to take the depositions by remote means under this broad discretion, because of three
types of prejudice Mr. Klayman has caused Defendants using remote depositions that he is likely
to repeat here, prejudicing Defendants, the Non-parties, and their counsel.
First, where, as here, the documents are voluminous and central to the deposition[s],
the Court has a basis for precluding a remote deposition. Estate of Gerasimenko, 272 F.R.D.
at 389 (citing Mercado v. Transoceanic Cable Ship Co., 1989 WL 83596, at *1 (E.D. Pa. 1989)).
Thus, the Court should not hesitate to deny motions to take remote depositions when, as here,
13
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
19 of 25 Page 73 of
78
previous remote depositions Plaintiff has taken in this action have focused on voluminous
exhibits. See Mercado, 1989 WL 83596, at *1 (denying request for remote deposition because of
prejudice, [w]here . . . diagrams and photographs are to be discussed and portions thereof
pinpointed and highlighted, there is a real likelihood of confusion and therefore prejudice);
Clinton v. California Dept of Corrs., 2009 WL 210459, at *4 (E.D. Cal. Jan. 20, 2009) (denying
motion to take remote deposition when the deposition would prejudice defendants by
depriv[ing] defendants of [the] opportunity to question plaintiff about the specific
documents the subpoena may request the deponent to bring to the deposition); United States v.
$160,066.98 from Bank of Am., 202 F.R.D. 624, 629-30 (S.D. Cal. 2001) (party opposing remote
deposition of claimants located in Pakistan met burden to show prejudice because plaintiff
needed claimants to confirm their identities, give a handwriting exemplar in front of expert
witness, and authenticate documents); see also Moores Federal Practice, 30-24[1], at 30-61
(3d ed. 2014) ([D]ocument-intensive depositions are proper candidates for refusing a telephone
deposition on futility grounds.). Given that each subpoena to the Non-parties requests 23 broad
categories of documents, the depositions would undoubtedly be document-intensive. See
Painton Subpoena Reqs. 1-23; S&S Subpoena Reqs. 1-23; Bennett Subpoena Reqs. 1-23.
Second, Plaintiff has compounded the prejudice of a document-intensive videoconference
deposition in this case by failing to make the exhibits available at the time and location of the
remote depositions. See 1199 SEIU, 2011 WL 2940490, at *3 (permitting remote deposition but
requiring that, [i]f the Defendants intend to introduce documents/exhibits at the deposition, then
Defendants counsel bear the responsibility for making arrangements to have such exhibits
available at the location and time of the deposition.); Rosario v. Anson, 2014 WL 4418052, at
*3 (N.D.N.Y. Sept. 8, 2014) (same). Even though Defendants had told Mr. Klayman to provide
14
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
20 of 25 Page 74 of
78
copies of exhibits at the location and time of the deposition, he failed to do so. Rather,
Mr. Klayman emailed Defendants many massive exhibits late at night before depositions, forcing
Defendants to print, make copies, and hand the exhibits to the deponent and court reporter.
Thus, Mr. Klaymans empty promises not to repeat this behavior are not credible.
Third, Plaintiff abused previous videoconference depositions by cancelling them with
insufficient notice to allow Defendants to avoid incurring attorneys fees and non-refundable
travel expenses, which prejudiced Defendants. See, e.g., Roger Dubuis N. Am., Inc. v. Thomas,
2006 WL 3199141, at *2-4 (M.D. Pa. Nov. 3, 2006) (awarding sanctions against party who
cancelled videoconference depositions on late notice that caused the opposing party to incur
travel costs). Accord Edmonds v. Seavey, 2009 WL 1285526, at *2-3 (S.D.N.Y. May 5, 2009)
(awarding sanctions of attorneys fees and costs against party cancelling deposition with
insufficient notice to deponent) (collecting cases), affd, 2009 WL 2150971, at *3-4 (S.D.N.Y.
July 20, 2009), affd, 379 F. Appx 62, 64 (2d Cir. 2010). Plaintiff could cancel at such a late
hour by taking advantage of the fact that the remote deposition allowed him to avoid incurring
his own travel costs while imposing those travel costs on Defendants. Similarly, Plaintiff
prejudiced Defendants by abruptly ending the Rule 30(b)(6) deposition of the publishing
company in the middle of questioning, and then asking a number of questions to the holding
company representative he should have asked the operating company representative the day
before. Collins v. Williams, 575 F. Supp. 2d 610, 618 (D. Del. 2008) (sanctioning plaintiff
because, among things, he chose to end the deposition prematurely).
Because Mr. Klayman abused the privilege of conducting videoconference depositions in
this case, the Court should deny Plaintiffs request to conduct videoconference depositions of the
Non-parties here.
15
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
21 of 25 Page 75 of
78
IV.
MR. KLAYMAN SHOULD NOT BE PERMITTED TO PARTICIPATE IN ANY

HEARING OR BE PERMITTED TO APPEAR PRO HAC VICE
Attorney Larry Klayman represents Plaintiff in the Underlying Action, commenced in the
Southern District of Florida, where Mr. Klayman is a member of the bar. 9 Mr. Klayman is the
only counsel for Plaintiff that has filed an appearance in the Underlying Action. Docket in the
Underlying Action, Exhibit 3. It is apparent that Mr. Klayman has been participating in
representing Plaintiff in these proceedings to compel compliance with his third-party subpoenas
in the Southern District of New York. Mr. Negron appears on behalf of Plaintiff as part of the
Klayman law firm with a D.C. address. Mot. to Compel at 15. Mr. Klayman signed the
November 12, 2015 email from his associate that served the motion to compel and memorandum
of law to the Non-parties and parties. Service Email, a true and correct of copy of which is
attached as Exhibit 5 hereto. Plaintiff has requested a telephone hearing and it unclear whether
Mr. Negron or Mr. Klayman will appear for Plaintiff to argue at that hearing.
Mr. Klayman may not appear in any way on behalf of Mr. Montgomery in the Southern
District of New York unless the court grants him pro hac vice status. S.D.N.Y. Local Civil
Rule 1.3(c) (Only an attorney has been so admitted or who is a member of the bar of this Court
may enter appearances for parties, sign stipulations or receive payments upon judgments, decrees
or orders.); Versace v. Versace, 2003 WL 1937201, at *1 (S.D.N.Y. Apr. 23, 2003) (stating that,
under Local Rule 1.3(c)[,] . . . only members of the Southern District bar and attorneys who
have been admitted pro hac vice may enter an appearance on behalf of a party). The Southern
District of New York, the Second Circuit, a New York state court, and other federal district
courts have denied Mr. Klaymans pro hac vice motions. For example:
As explained above (Section II.A supra), none of the parties are in Florida and there is no
Florida connection of any significance to this action.
16
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
22 of 25 Page 76 of
78
In 2015, Judge Murry G. Snow of the U.S. District Court for the District of Arizona
denied Mr. Klaymans pro hac vice motion because of his past disciplinary issues,
his behavior suggests that he would infuse invective in this lawsuit, and his
appearance for Plaintiff, a putative intervenor in that case, would result in a conflict
of interest. Melendres v. Arpaio, No. 2:07-cv-02513-GMS, Hrg Tr. 10:14-13:13 (D.
Ariz. Aug. 11, 2015), appeal pending, No. 15-72440 (9th Cir. Aug. 8, 2015), a true
and correct copy of which is attached as Exhibit 6 hereto.
In 2009, Judge Deborah A. Batts of the U.S. District Court for the Southern District
of New York sua sponte found, based on Mr. Klaymans history, that, were
Mr. Klayman to file a motion pro hac vice, it would not be granted. Stern v. News
Corp., No. 1:08-cv-07624-DAB-RLE, ECF No. 2 (S.D.N.Y. May 13, 2009) (Batts,
J.), a true and correct copy of which is attached as Exhibit 7 hereto. Thus, Judge
Batts prospectively denied Mr. Klaymans pro hac vice motion. This action had been
transferred to S.D.N.Y. from S.D. Fla. because of Mr. Klaymans questionable
behavior and his failure to file a timely response; plaintiff a former New York
resident moved to Florida only two-and-a-half months before filing in S.D. Fla.;
defendants and witnesses were in New York; events giving rise to the alleged libel
occurred in New York; and New York law applied. Stern v. News Corp., 2008 WL
10712037, at *1-2 (S.D. Fla. Aug. 26, 2008)
In 2007, Judge Walter B. Tolub of the New York Supreme Court, New York County,
denied Mr. Klaymans motion to appear pro hac vice. Stern v. Burkle, 2007 WL
2815139 (Sup. Ct. N.Y. Cnty. Sept. 7, 2007). Collecting cases in which courts
sanctioned Mr. Klayman or denied his pro hac vice application, the court found that
Mr. Klayman has been cited repeatedly, in many different jurisdictions, for
inappropriate and unethical behavior. Id. The court concluded that Mr. Klaymans
record demonstrates more than an occasional lapse in judgment, it evinces a total
disregard for the judicial process. Id. Thus, there was no reason for Mr. Klayman
to be involved in this case or appear in this court. Id.
In 1997, Judge Denny Chin then of the U.S. District Court for the Southern District of
New York sanctioned Mr. Klayman for undignified and discourteous conduct that
was both degrading to the Court and prejudicial to the administration of justice.
MacDraw, Inc. v. CIT Group Equip. Financing Inc., 994 F. Supp. 447, 455 (S.D.N.Y.
1997). The court found that Mr. Klayman had advanced preposterous claims, had
engaged repeatedly in abusive and obnoxious behavior during depositions, and had
accused the court of racial and political bias. Id. at 457-59. Judge Chin revoked
Mr. Klaymans pro hac vice admission and stated that he would deny any future
applications by Mr. Klayman. Id. at 460. Judge Chin also ordered that a copy of his
opinion imposing sanctions be provided to any judge in S.D.N.Y. to whom
Mr. Klayman applied for pro hac vice status. The Second Circuit affirmed the
decision, stating that it could find no error in the sanctioning of [Mr. Klayman],
much less an abuse of discretion. 138 F.3d 33, 37 (2d Cir. 1998).
In 1996, Judge William D. Keller of the U.S. District Court for the Central District of
California sanctioned Mr. Klaymans law firm for unreasonably and vexatiously
17
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
23 of 25 Page 77 of
78
multiplying the proceedings, barred Mr. Klayman permanently and prospectively

from appearing before him pro hac vice ever again, and required Mr. Klayman to
attach the order to any future pro hac vice application in C.D. Cal. Baldwin
Hardware Corp. v. Franksu Enter. Corp., 78 F.3d 550, 555 (Fed. Cir. 1996) (in
appellate briefing, accused trial judge of anti-Semitic, anti-Asian bias). The Federal
Circuit affirmed the sanctions. Id. at 564.
Mr. Klaymans remarkable record over the last nineteen years demonstrates that this Court
should not permit Mr. Klayman to participate or appear at any hearing, telephone or otherwise,
on the motion to compel without first moving for pro hac vice status, and the Court should deny
any pro hac vice motion Mr. Klayman may file.
V.
CONCLUSION
In sum, Defendants object to the subpoenas and oppose the Motion to Compel for three
main reasons: (1) the subpoenas seek information protected by the applicable reporters privilege
and shield law; (2) the subpoenas purport to state that the Non-parties depositions will be taken
by videoconference, which, based on prior depositions in the Underlying Action, is
objectionable; and (3) to the extent that Mr. Klayman seeks to participate or appear at any
requested hearing, telephone or otherwise, on the Motion to Compel, he should not be permitted
to do so because he has not appeared pro hac vice and any request to appear pro hac vice should
be denied.
18
Case 1:15-mc-00363-P1
Document Document
187-2 Entered
22 Filed
on FLSD
11/23/15
Docket
Page
12/04/2015
24 of 25 Page 78 of
78
November 23, 2015

/s/ Laura R. Handman
Laura R. Handman (Bar No. LRH5353)
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants James Risen,
Houghton Mifflin Harcourt Publishing Co.
and Houghton Mifflin Harcourt Co. in
Montgomery v. Risen, et al., Case No. 15-cv-20782
(S.D. Fla.)
19
EXHIBIT C
Case 1:15-mc-00363-P1
Document 187-3
Document
Entered
35 on
Filed
FLSD
12/01/15
Docket Page
12/04/2015
1 of 2 Page 2 of 3
Case 1:15-mc-00363-P1
Document 187-3
Document
Entered
35 on
Filed
FLSD
12/01/15
Docket Page
12/04/2015
2 of 2 Page 3 of 3

Montgomery V Risen # 187 - D Opp To Motion To Extend Discovery Deadline

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Montgomery V Risen # 187 - D Opp To Motion To Extend Discovery Deadline

Uploaded by

Copyright:

Available Formats

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 1 of 11

UNITED STATES DISTRICT COURT

HOLLAND & KNIGHT LLP

DAVIS WRIGHT TREMAINE LLP

Counsel for Defendants

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 2 of 11

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 3 of 11

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 4 of 11

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 5 of 11

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 6 of 11

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 7 of 11

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 8 of 11

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 9 of 11

Indeed, in August, when Defendants counsel offered in consideration of Plaintiffs health to

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 10 of 11

Case 1:15-cv-20782-JEM Document 187 Entered on FLSD Docket 12/04/2015 Page 11 of 11

Dated: December 4, 2015

Case 1:15-cv-20782-JEM Document 187-1 Entered on FLSD Docket 12/04/2015 Page 1 of 2

UNITED STATES DISTRICT COURT

SA CV 15-MC-0031 CJC (JCGx)

Dennis Montgomery v. Michael Flynn, et al.

Present: The Honorable

Jay C. Gandhi, United States Magistrate Judge

Court Reporter / Recorder

Attorneys Present for Non-Parties:

Attorneys Present for Defendants:

(IN CHAMBERS) ORDER DENYING MOTION TO COMPEL

CIVIL MINUTES - GENERAL

Case 1:15-cv-20782-JEM Document 187-2 Entered on FLSD Docket 12/04/2015 Page 1 of 78

IN THE UNITED STATES DISTRICT COURT

Civ. Action 15 Misc. 0363

NON-PARTIES SIMON & SCHUSTER, INC. AND PRISCILLA PAINTONS

McCUSKER, ANSELMI, ROSEN &

THE LIBEL ACTION. ............................................................................................4

THE RISEN BOOK. ................................................................................................5

THE SUBPOENAS. ................................................................................................6

SERVICE OF PROCESS. .......................................................................................6

LEGAL STANDARD. .............................................................................................9

THE SUBPOENAS WERE NOT PROPERLY SERVED ON S&S AND

NEW YORKS SHIELD LAW PROVIDES THE S&S NON-PARTIES

PLAINTIFFS REQUESTS ARE FATALLY OVERBROAD AND

THE S&S NON-PARTIES OPPOSE REMOTE CONFERENCING

Fears v. Wilhelmina Model Agency, Inc.,

United States v. Int'l Bus. Machines Corp.,

Affidavits submitted herewith demonstrate conclusively that the process servers

THE LIBEL ACTION.

THE RISEN BOOK.

THE SUBPOENAS WERE NOT PROPERLY SERVED ON S&S AND MS.

NEW YORKS SHIELD LAW PROVIDES THE S&S NON-PARTIES

N.Y. Civ. Rights Law 79h(c).

PLAINTIFFS REQUESTS ARE FATALLY OVERBROAD AND NEITHER

THE S&S NON-PARTIES OPPOSE REMOTE CONFERENCING OF ANY

McCUSKER, ANSELMI, ROSEN &

By: ____/s/ Bruce S. Rosen____________________

UNITED STATES DISTRICT COURT

Oral Argument Requested

DEFENDANT TINA BENNETTS MEMORANDUM OF LAW IN OPPOSITION

MARINO, TORTORELLA & BOYLE, P.C.

THE COURT SHOULD DECLINE TO ENFORCE THE SUBPOENA

THE COURT SHOULD QUASH OR MODIFY THE SUBPOENA BECAUSE

THE COURT SHOULD DENY MONTGOMERYS REQUEST TO DEPOSE

Tube City IMS, LLC v. Anza Capital Partners, LLC,

Although Montgomerys process server claims he served the Subpoena on

By: /s/ Bruce S. Rosen________________