Case 1:16-cv-00126-RC Document 262 Filed 03/22/16 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
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Dennis L. Montgomery,
Plaintiff,
v.

No. 1:16-cv-00126-RC

James Risen, Houghton Mifflin Harcourt

Publishing Co., et al.
Defendants.
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DEFENDANTS UNCONTESTED MOTION FOR
LEAVE TO SUPPLEMENT THE RECORD
In connection with their Motion for Summary Judgment, ECF No. 201, and Motion for
Sanctions, ECF No. 166, Defendants hereby move for leave to supplemental the factual record
with the accompanying Supplemental Declaration of Laura R. Handman. Because all of the
points and authorities upon which Defendants rely in support of this motion are stated herein,
Defendants have not filed a separate memorandum in support. In support of the requested relief,
Defendants state as follows:
1.

Defendants assert in their summary judgment motion that Plaintiffs deliberate

failure to produce the software at the heart of his claim compels the conclusion that he cannot
meet his burden to prove falsity as a matter of law in this libel clam. Defendants further assert in
their sanctions motion that Plaintiff has spoliated the software and therefore Defendants seek
dismissal sanctions, or alternatively preclusion of evidence.
2.

On November 3, 2015, prior to the close of discovery, Defendants served the

United States Air Force with a subpoena seeking documents and testimony. The United States

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Air Force responded to Defendants subpoena on March 10, 2016. Air Force Response, Suppl.
Decl. Laura R. Handman, attached hereto as Ex. A.
3.

Defendants seek by this motion to provide the Court, via the Supplemental

Declaration of Laura R. Handman, a copy of the United States Air Forces response to
Defendants subpoena, which includes information not otherwise in the record regarding the
governments efforts to locate a copy of Plaintiffs software and records relative to efforts to
validate the software.
4.

Supplementing the record with this additional information will assist the Court in

its determination of the pending motions by providing a more complete factual record.
5.

In accordance with LCvR 7(m), undersigned counsel conferred with counsel for

Plaintiff before filing this motion. Plaintiff consented to the filing of the instant motion.
WHEREFORE, Defendants respectfully request that this uncontested motion be granted
and that the Court enter the proposed order granting Defendants leave to supplement the record
in this case with the accompanying Declaration of Laura R. Handman.

Dated:

March 22, 2016

Respectfully submitted,
DAVIS WRIGHT TREMAINE LLP
By:
/s/ Laura R. Handman
Laura R. Handman (Bar No. 444386)
Lisa B. Zycherman (Bar No. 495277)
1919 Pennsylvania Avenue, NW, Suite 800
Washington, DC 20006
Telephone: (202) 973-4200
Facsimile: (202) 973-4499
laurahandman@dwt.com
lisazycherman@dwt.com
Counsel for Defendants

Case 1:16-cv-00126-RC Document 262 Filed 03/22/16 Page 3 of 3

CERTIFICATE OF SERVICE
I certify that on March 22, 2016, I filed the foregoing Defendants Motion for Leave to
Supplement the Record, Supplemental Declaration of Laura R. Handman, and exhibit thereto,
and proposed order using CM/ECF.

/s/ Laura R. Handman

Laura R. Handman

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EXHIBIT A

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EXHIBIT 1

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U.S. Department of Justice
Civil Division, Federal Programs Branch

Raphael O. Gomez
Senior Trial Counsel

Via U.S. Mail:

P.O. Box 883
Washington, DC 20044

Via Courier:
20 Massachusetts Avenue NW
Washington, DC 20530

Telephone:
Fax:
Email:

(202) 514-1318
(202) 616-8460
raphael.gomez@usdoj.gov

March 10, 2016

Via First Class & Electronic Mail:
laurahandman@dwt.com
Laura R. Handman, Esq.
Davis Wright Tremaine LLP
1919 Pennsylvania Avenue NW, Suite 800
Washington, DC 20006-3401
Re:

Montgomery v. Risen, et al., No. 16-126 (D.D.C.)

Dear Ms. Handman:

As we previously discussed, please find enclosed the United States Air Forces Touhy
response to defendants two subpoenas.
Sincerely,
/s/ Raphael O. Gomez
Raphael O. Gomez
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch

Enclosure:

Letter from Robert F. Booth, Colonel, USAF

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DEPARTMENT OF THE AIR FORCE
HEADQUARTERS AIR FORCE LEGAL OPERATIONS AGENCY

10 March 2016

AFLOA/JACL
1500 West Perimeter Road, Suite 1370
Joint Base Andrews, MD 20762
Laura Handman, Esq.
Davis Wright Tremaine LLP
1919 Pellllsylvania Avenue, NW
Washington, DC 20006
Dear Ms. Handman
We are in receipt of your November 3, 2015 subpoena for production of certain
documents from the United States Air Force ("Air Force") and your November 3, 2015 subpoena
for the testimony of Paul L. Haraldsen, a former Air Force employee. It is the Air Force's
understanding that Mr. Haraldsen has not been personally served. We are also in receipt of the
November 3, 2015 declaration of attorney Micah J. Ratner offered pursuant to 32 C.F.R. Patt 97,
the Touhy Regulation applicable to the Air Force, to suppmt the two subpoenas. We have made
the following determinations with respect to your requests.
First, the Air Force conducted a search of its records, including records of former Air
Force employee Paul Haraldsen, and did not locate a "copy of Montgomery's software, including
but not limited to video compression software, object detection or recognition software, facial
recognition software, or noise filtering software that Montgomery allegedly used in Air Force
contracts." Ratner Declaration at if 13b.
Second, with respect to the document subpoena, you seek "[a]ny documents in which the
Air Force questioned the utility of Montgomery's software, found that the software did not work,
or found that the software did not exist" as well as "[a] copy of the 'Government['s] ... own
independent tests of Plaintiff Montgomery's software' that 'confirmed its effectiveness and
reliability"' as alleged in paragraph 48 of Montgomery's Amended Complaint. Id. at ifif 13a and
13c. The Air Force located records relating to its efforts to validate Montgomery's software in
early 2009 pursuant to a contract with Blxware. While the Air Force attempted to conduct a
validation of Montgomery's software, it was not able to execute that validation because Blxware
failed to provide a copy of the software. These records are classified or otherwise subject to
privilege and currently undergoing a review to determine if any portion of them can be disclosed
to document that Blxware did not provide a copy of the software pursuant to the contract.
Based upon an agreement reached by U.S. Depmtment of Justice counsel Raphael
Gomez, who represents the Air Force with respect to these subpoenas, and yourself this is to
confirm that other than the documents identified above, the Air Force will conduct no further

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review of documents subject to the two Air Force subpoenas. Furthermore, we are deferring a
determination as to the request for the deposition testimony of Mr. Paul L. Haraldsen, a former
Air Force employee until the court rules on the defendants' motions to dismiss, for summary
judgment, and for sanctions against Mr. Montgomery and until Mr. Haraldsen is personally
served. Unlike the Haraldsen subpoena, the Air Force subpoena does not specifically identify a
declarant; rather it lists as the following with respect to a declarant: U.S. Department of the Air
Force, c/o Secretary of the Air Force, the Pentagon, Arlington, VA. The Ratner declaration lists
Mr. Joseph Liberatore, also a former Air Force employee, whom Defendants seek to depose.
However, Defendants have not provided the Air Force with a copy of a subpoena for Mr.
Liberatore and the Air Force is not aware that Mr. Liberatore has been personally served with a
subpoena. In any event, we are also deferring a determination as to the request for the deposition
testimony for the same reasons as set forth as to Mr. Haraldsen above.

If you have any questions regarding this response, my point of contact is Mr. John Pellett.
Mr. Pellett or I can be reached at 240-612-4700 or through Mr. Gomez.
Sincerely,

ROBERT F. BOOTH, Colonel, USAF

Chief, General Litigation Division

cc:
Raphael Gomez, U.S. Department of Justice