montgomery v risen # 178 | montgomery opp to d motion for sanctions

8/20/2019 Montgomery v Risen # 178 | Montgomery Opp to D Motion for Sanctions

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

DENNIS L. MONTGOMERY

Plaintiff,

v.

JAMES RISEN, ET AL.,

Defendants.

Civil Action No. 1:15-cv-20782-JEM

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MEMORANDUM OF LAW INSUPPORT OF THEIR MOTION FOR SANCTIONS

Plaintiff Dennis Montgomery respectfully submits this Memorandum of Law in Response

and Opposition to Defendants’ Memorandum of Law in Support of Their Motion for Sanctions.

I. INTRODUCTION

In light of the Defendants’ motion’s utter lack of merit and improper purpose, its denial

should be compounded by a corresponding levy of sanctions and costs against Defendants James

Risen, Houghton Mifflin Harcourt Publishing Company, and Houghton Mifflin Harcourt

Company, and their counsel. Defendants have used both the threat of filing this type of motion,

not as a means to filter an alleged and unmeritorious claim of spoliation by Plaintiff

Montgomery, but as a heavy-handed, bullying tactic intended to intimidate Plaintiff Montgomery

into withdrawing his legitimate claims in an evolving and uncharted area of law with regard to

the investigation of Federal Bureau of Investigation (“FBI”) and the alleged software at issue.

II. STATEMENT OF FACTS

The Defendants James Risen, Houghton Mifflin Harcourt Publishing Company, and

Houghton Mifflin Harcourt Company defamed Plaintiff Montgomery published a book, “Pay

Case 1:15-cv-20782-JEM Document 178 Entered on FLSD Docket 11/16/2015 Page 1 of 18


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Any Price: Greed, Power and Endless War ” (“Pay Any Price”) in Florida, nationally, and

internationally which unequivocally and maliciously claims that Plaintiff Montgomery

committed “one of the most elaborate and dangerous hoaxes in American history.” Here are

a few excerpts of the outrageous and false allegations the Defendants’ widely published:

Montgomery was the maestro behind what many current and former U.S. officials

and others familiar with the case now believe was one of the most elaborate anddangerous hoaxes in American history, a ruse that was so successful that it

nearly convinced the Bush administration to order fighter jets to start

shooting down commercial airliners filled with passengers over the Atlantic.

Once it was over, once the fever broke and government officials realized that

they had been taken in by a grand illusion, they did absolutely nothing about

it. The Central Intelligence Agency buried the whole insane episode and

acted like it had never happened. The Pentagon just kept working withMontgomery. Justice Department lawyers fanned out across the country to

try to block any information about Montgomery and his schemes from

becoming public, invoking the state secrets privilege in public, a series of civil

lawsuits involving Montgomery. It was as if everyone in Washington was

afraid to admit that the Emperor of the War on Terror had no clothes.

***Consider the example of Dennis Montgomery. He provides a perfect case study

to explain how during the war on terror greed and ambition have been married to

unlimited rivers of cash to create a climate in which someone who has been

accused of being a con artist was able to create a rogue intelligence operation withlittle or no adult supervision. Crazy became the new normal in the war on terror,

and the original objectives of the war got lost in the process.

***A former medical technician, a self-styled computer software expert with no

experience whatsoever in national security affairs, Dennis Montgomery almostsinglehandedly prompted President Bush to ground a series of international

commercial flights based on what now appears to have been an elaborate hoax.

Even after it appeared that Montgomery had pulled off a scheme of amazing

scope, he still had die-hard supporters in the government who steadfastly

refused to believe the evidence suggesting that Montgomery was a fake, and

who rejected the notion that the super-secret computer software that he

foisted on the Pentagon and CIA was anything other than America’s

salvation.



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“Pay Any Price” at pp. 31 to 33 (emphasis added). This defamation has caused severe damage to

Plaintiff Montgomery, who is terminally ill, bed-ridden and recently hospitalized, with a

worsening brain aneurism that could prove fatal at any moment.

By making Plaintiff Montgomery the whipping boy and primary focus of Defendant

Risen’s book – and indeed the chapter on Plaintiff is titled, “The Emperor of the War on Terror ”

– Defendants were able to sell a vast number of books based on unsubstantiated, sensational

charges. They did this by falsely claiming that Defendant Risen had access to confidential

sources and information from the government and therefore his book was “special.” At the very

beginning of “Pay Any Price,” Defendant Risen and his publishers tout:

[m]any people have criticized the use of anonymous sources. Yet all reported

know that the very best stories – the most important, the most sensitive rely on

them. This book would not be possible without the cooperation of many currentand former government officials and other individuals who were willing to

discuss sensitive matters only on the condition of anonymity.

See Exhibit 7.

However, at Defendant Risen’s deposition, Plaintiff’s counsel confirmed that Defendant

Risen did not have access to confidential sources or information and that he essentially “made

the whole thing up.” This set forth on the record and is confirmed in Defendants’ Motion to

Dismiss [Dkt. # 25 at pp. 7-10] wherein the Defendants claim that the case should be dismissed

on the basis on previously published public information. The Court does not need to analyze and

weigh anything else.

In short, Defendants did not have access to any alleged software in writing and

publishing their defamatory book, “Pay Any Price.” Predictably, Defense counsel tries to create a

“Catch-22” by demanding software that Plaintiff Montgomery, upon reflection, does not believe

he has had during the time leading up to and during the pendency of this case. “Based on my



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personal knowledge and belief, upon searching my memory, I do not believe that I have had

access to any of the subject software . . .” Exhibit 1.

In addition, it is clear from communications generated by the U.S. Department of Justice

and the Central Intelligence Agency (“CIA”) that even if such software existed, it could not be

produced to the Defendants since the government would consider it classified. For instance, in a

letter of October 16, 2015 in response to Defendants’ discovery subpoenas served on the CIA

and its officials, Raphael O. Gomez writes:

You have not satisfied your burden of establishing that the requested information

is relevant to [your clients’] defenses. For example, you assert that the testimony

sought is needed to sup port your clients’ defenses in this action, including“information essential to answering questions that are central to the element of

falsity in Montgomery's libel claim.” Ratner Declaration at 3. The validity of

these defenses turns, however, on what the defendants knew or should have

known at the time of the challenged statements, not on what the governmentknew. See, Don King Prods. v. Walt Disney Co., 40 So. 3d 40, 43 (Fla. Dist. Ct.

App. 4th Dist. 2010) (in the context of defamation, actual malice is defined as

knowledge that the statement was false or reckless disregard of whether it wasfalse or not. [citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80,

(1964)]); in assessing “reckless disregard,” the court found that a showing of

“reckless disregard” requires “sufficient evidence to permit the conclusion that the

defendant in fact entertained serious doubts as to the truth of his publication.” Id .(quoting the Supreme Court in St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

As a result, your requests are also not “reasonably calculated to lead to the

discovery of admissible evidence,” and the burden and expense of providing therequested testimony would outweigh its likely benefit in the underlying action.

See Fed. R. Civ. P. 26(b)(1), (b)(2)(C)(iii).

See Exhibit 2.

In addition, Mr. Gomez states, “[t]he CIA objects to the requests to the extent any response

would risk or require the disclosure of any classified national security information or other

privileged U.S. Government information.” Id .

In a subsequent letter of November 13, 2015, the CIA itself states to Defendants’ counsel:

We are in receipt of your October 2, 2015 subpoenas to the Central Intelligence

Agency (“CIA”) seeking the production of CIA documents and electronically



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stored information, as well as the testimony of four current or former CIA

officials. For the reasons set forth below, the CIA declines to authorize CIA

employees, current or former, to testify or produce information related to or basedupon materials contained in the files of the CIA in connection with the above-

referenced matter. In addition, the CIA declines to search its records for

information that might be responsive to your demand, except for the informationdiscussed below.

***

The CIA conducted a search of its records and did not locate “a copy of

Montgomery’s software, including but not limited to video compression software

or noise filtering software Montgomery allegedly used to detect hidden Al Qaeda

messages in Al Jazeera broadcasts.

***

Second, the CIA is a clandestine intelligence service and most of our

information is classified. Even if the CIA were to devote Agency resources to

searching for records that might pertain to your private lawsuit, responsive

records (if there were any) would almost certainly be classified or otherwise

privileged from disclosure and hence unavailable to you. The disclosure or

production of classified information or records, including any

acknowledgement that such information or records exist, would violate the

Executive Order governing classified information and CIA’s statutory

responsibility to protect intelligence sources and methods, 32 C.F.R. §

1905.4(c)(3)(ii), and reasonably could be expected to cause damage to the

national security.

Consistent with the above, the CIA will not, in response to demands from litigants

in a private lawsuit, confirm or deny details concerning tis intelligence operationsas reflected in media reports or publications, particularly when those reports are

based in part on anonymous sources, non-official disclosures, or unauthorized

disclosures. Responding to demands for information in private litigation in thewake of such media reports, including where individuals who wrote the reports

were subsequently sued by private parties, would impose unreasonable burdens

on the Agency to frequently address media allegations concerning its mission in

third-party discovery.

Third, and for the same reasons outlines above, your demand for the testimony of

four current or former employees of the Agency is also denied. As a general

matter, the CIA cannot make current or former employees available fordepositions or testimony whenever a demand for information arises – particularly

in litigation to which the CIA is not a party – because to do so would unduly

interfere with the conduct of CIA’s mission.



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Current and former senior CIA officials and employees acquire a wide range of

classified national security information as part of the performance of their official

duties, and the time and resources involved in preparing them for depositions,identifying and limiting any testimony at their depositions in order to avoid the

disclosure of classified information, and reviewing the resulting transcripts, would

impose a significant and unreasonable burden on CIA resources. Again, this isespecially true in litigation between private parties involving a private dispute,where the matters at issue have been prompted by publications concerning alleged

CIA activities based on non-official disclosures and anonymous sources.

See Exhibit 3 (emphasis added).

Nevertheless, in the face of his failing health, Plaintiff Montgomery has made a timely,

good faith effort to assist the FBI, and the U.S. Department of Justice, with whom he has an

immunity agreement and has agreed to assist in locating any such software, if it exists. Exhibit 4.

These good faith efforts have been detailed and supported in Plaintiff’s Objections [Dkts # 125,

143, 144, 164], of Magistrate Judge Goodman’s Orders of August 22, 2015, September 15, 2015,

and October 19, 2015, the content of which is incorporated herein by reference. In addition,

Plaintiff Montgomery has continued to diligently communicate with the FBI since these

objections were filed to attempt to narrow the scope of the FBI’s search to find any such

software if it is contained on the 600 million pages and other materials comprising the 47 hard

drives which Plaintiff turned over to the FBI (as he felt compelled to do and as he has been

trying to do for years). Attached is his correspondence, which underscores Plaintiff

Montgomery’s good faith effort as a government whistleblower and material government witness

to what appears to be massive criminal wrongdoing by rogue high officials in the CIA and other

intelligence agencies in harvesting the financial and other records of the Chief Justice, other

justices of the U.S. Supreme Court, lower court judges and magistrates, congressmen, senators,

prominent businessmen and anyone who these rogue officials view as a threat or even

controversial or in a position in power, such that targeted individuals and entities can be



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influenced – that is, potentially coerced – into doing what they want. See Exhibit 5. Indeed,

Plaintiff Montgomery also maintains that this harvesting was used to influence the presidential

elections of 2008 and 2012. In short, Plaintiff Montgomery does not believe has had the software

on reflection, but if he did, he is making every concerted effort to have the FBI find it in the huge

amount of material he produced, despite his fragile and failing health.

It is important to recognize that Plaintiff Montgomery, as the record reflects, began

cooperating with the FBI and the U.S. Department of Justice long before this case was filed. He

did so as a patriot and not to save his own skin, particularly since he is terminally ill.

Finally it is clear that the FBI, if it should find any such software, would have to do a

classification review, as General Counsel James Baker has stated in prior correspondence. See

Exhibit 11. Indeed, Plaintiff’s counsel has been dealing with the highest levels of the FBI – that

is, Director James B. Comey through his General Counsel, James Baker. The Honorable Royce

C. Lamberth of the U.S District Court of the District of Columbia had initiated and furthered this

liaison and has played a crucial role in allowing Plaintiff Montgomery to come forward as a

whistleblower and material government witness after may years of trying to do so.

For all these reasons, Plaintiff Montgomery continues to work with the FBI to locate the

software, if it exists, see Exhibit 5, and should not fall victim to Defendants’ strategy of

demanding disingenuously that this case should be dismissed based on alleged software which

Defendant Risen did not depend on, have access to, and which the U.S. Department of Justice

and CIA assert is classified and off limits in any event.1

1 Contrary to Defendants’ false assertions, no court has ever previously found unequivocally thatany software is not classified. The U.S. District Court for the District of Nevada (“Nevada

District”) ruled that (1) the data, documents, intellectual property, tangible objects, and personal

property at issue in this case belong to Montgomery, (2) the government did not address whether

the information was classified adequately to support that claim, (3) the U.S. Government was



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required to return it all to Montgomery, and (4) the U.S. Government had deceived that court.

Dennis Montgomery and the Montgomery Family Trust v. eTreppid Technologies, LLC, Warren

Trepp and the U.S. Department of Defense, Case Nos. 3:06-CV-00056-PMP-VPC and 3:06-CV-00145-PMP-VPC, Order, Judge Philip M. Pro, March 19,2007, and In the Matter of the

Search of: The Residence Located at 12720 Buckthorne Lane, Reno, Nevada, and Storage Units

136, 140, 141, 142 and 143, Double R Storage, 888 Madestro Drive, Reno, Nevada, Case Nos.3:06-CV-0263-PMP-VPC and 3:06-MJ-00023-VPC, Order, Magistrate Judge Valerie P. Cooke,

November 28, 2006 (referred to as “Nevada Orders”).

In the Nevada District, Judge Philip M. Pro upheld the order of the Magistrate Judge on

March 19, 2007, finding no error. Magistrate Judge Valerie P. Cooke, issued a detailed order November 28, 2006, in relation to the U.S. Government’s search warrant and illegal search and

seizure of Montgomery’s records, information, and property. Magistrate Judge Cooke orderedthe Government to return to Montgomery the items that had been taken.

Magistrate Judge Cooke noted in dicta that the government simply did not pursue the

issue as to whether Montgomery’s records and documents are classified. Id., page 13:24 – 14:4.

The government dropped the argument in the case, and therefore Magistrate Cooke did not rule

on the issue.Magistrate Judge Cooke’s ruling was based on her finding that the government affidavit

used to justify the search warrant was false and misleading and condemned the government’s

“callous disregard” for Montgomery’s rights. Magistrate Judge Cook e explained the problem on pages 30:25 – 31:3 of her November 28, 2006, Order:

SA West blindly relied on the documents, sworn statements, and evidence

supplied by eTreppid, and he never appeared to question whether he had becomean agent, not for the Government, but for private interests engaged in litigationvalued in millions of dollars. The litigation that has ensued based upon the seizure

of Montgomery's property is a cautionary tale to heed the admonition that trade

secrets litigation is best left to the civil forum.***

And Magistrate Cooke further concluded on page 29:20 – 30:2 of her Order:

The over-arching concern in this proceeding is that SA West became an unwitting pawn in a civil dispute, and as a result of his inexperience and lack of training, he

prepared search warrant affidavits that are riddled with incorrect statements,

edited documents, and uncorroborated conclusions, which caused this court to

exercise its formidable power to authorize the government to searchMontgomery's home and storage units.

Thus, Defendants’ and their counsels’ allegations that prior courts have found any

software not to be classified are misleading if not outright false.



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III. ARGUMENT

A. Legal Standard for a Party Seeking Sanctions for Spoliation and a Party Seeking

the Extreme Remedy of Dismissal Because of an Alleged Violation of Court

Orders

The party seeking sanctions for spoliation of evidence bears the burden of proof. Comm.

Long Trading Corp. v. Scottsdale Ins. Co., 2013 U.S. Dist. LEXIS 36031 (S.D. Fla. Mar. 15,

2013). Where a party seeking case-dispositive sanctions, such as a dismissal, the complained of

conduct must be established by clear and convincing evidence. In re Brian Am. LLC Equip.

Lease Litig., 977 F. Supp. 2d 1287, 1293 n.6 (S.D. Fla. 2013). The “clear and convincing

evidence” standard has been described as evidence that “place[s] in the ultimate factfinder an

abiding conviction that the truth of its factual contentions are highly probable.” Colorado v. New

Mexico, 467 U.S. 310, 316 (1984). But, such severe sanctions should be resorted to “only if

noncompliance is due to willf ul or bad faith disregard of court orders” and the court finds lesser

sanctions would not suffice. Adolph Coors Co. v. Movement Against Racism and the Klan, 777

F.2d 1536, 1542 (11th Cir. 1985).

Sanctions are a drastic remedy reserved for only the most extraordinary circumstances.

See e.g., E. Gluck Corp. v. Rothenhaus, 252 F.R.D. 175, 178 (S.D.N.Y. 2008). As such, a motion

for sanctions cannot be used “to emphasize the merits of a party’s position, to exact an unjust

settlement, [or] to intimidate an adversary into withdrawing contentions that are fairly

debatable,” see Laborers Local 938 Joint Health & Welfare Trust Fund v. B.R. Starnes Co. of

Florida, 827 F.2d 1454, 1458 (11th Cir. 1987), which is precisely what Defendants attempt to do

with their motion.

1. Defenda nts’ Spoliation Claim Fails As a Matter of Law Because Defendants

Fall Drasticall y Short of Proving the Necessary Elements of Spoliation.



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S poliation is the “destruction, mutilation, alteration, or concealment of evidence.” In re

Complaint of Boston Boat III, L.L.C., 2015 WL 5156561, at *2 (S.D. Fla. Sept. 2, 2015). To

obtain the extreme remedy of sanctions for spoliation, Defendants must show that: (1) the

missing evidence existed at one time’”; (2) “‘alleged spoliator had a duty to preserve the

evidence’”; (3) “‘the evidence was crucial to the movant being able to prove its prima facie case

or defense’”; and (4) the spoliator acted in bad faith. Id . at *3. Defendants fail to meet any of

these four elements.

First, Plaintiff Montgomery did not allege in the Amended Complaint that he was in

custody, possession or control of the alleged software at the time this case was contemplated and

filed. Indeed, Plaintiff Montgomery filed an affidavit stating as much: “Based on my personal

knowledge and belief, upon searching my memory, I do not believe that I have had access

to any of the subject software . . .” See Exhibit 1 (emphasis added). There have been no

intentional misrepresentations, as Defendants’ counsel tactically argues.

Second, even if Plaintiff Montgomery had a duty to preserve the alleged software – which

he did not, especially under the circumstances – first, he never claimed that it was in his custody,

possession or control and therefore he would not have been able to preserve that which does not

exist in his possession; and, second, because of his ongoing attempts to turn over the

information, data and hard drives to the FBI, Plaintiff Montgomery did not have a duty to

preserve any potentially classified information that was subject of continuous talks and

concomitant actions with the FBI in turning it over to them. Indeed, Plaintiff Montgomery

attempted to turn over the information, data and hard drives to the FBI since May of 2013, two

years before this case was contemplated or filed.



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Generally, identifying when a plaintiff should preserve documents and other evidence

involves two questions: (1) when does the duty to preserve evidence attach, and (2) what must be

preserved. Zubulake v. UBS Warburg LLC , 220 F.R.D. 212, 216 (S.D.N.Y. 2003). Concerning

when, once a party reasonably anticipates litigation, a plaintiff may have a duty to preserve

evidence. Pension Committee v. Banc of America Securities, LLC , 685 F. Supp. 2d 456, 466

(S.D.N.Y 2010). Regarding what , parties are advised to “retain all relevant documents in

existence at the time the duty to preserve attaches.” Zubalake, 220 F.R.D. at 218. However,

following the logic above, what to preserve does not attach unless when the duty to preserve is

unequivocal.

A party’s duty to preserve evidence relating to a particular issue does not arise simply

because litigation has been filed. See Managed Care Solutions, Inc. v. Essent Healthcare, Inc.,

736 F. Supp. 2d 1317, 1326-27 (S.D. Fla. 2010); Silhan v. Allstate Ins. Co., 236 F. Supp. 2d

1303, 1309 n.8 (N.D. Fla. 2002) (“It is essentially impossible for everyone . . . to hold onto every

piece of potential evidence just because there is a possibility that litigation may arise sometime

in the future. It is unreasonable to view the concept of duty on such a broad scale.”).

Third, “[t]o prevail on [their] motion for spoliation sanctions, [the Defendants] must

demonstrate that [they are] unable to prove [their] underlying action owing to the unavailability

of the [allegedly spoliated] evidence.’” Corporate Fin., Inc. v. Principal Life Ins. Co. , No. 05-

20595-CIV, 2006 U.S. Dist. LEXIS 84540 at *2 (S.D. Fla. Nov. 20, 2006). Indeed, “[s]poliation

actions typically involve the destruction of evidence that is absolutely crucial to the action.”

Florida Evergreen Foliage v. E.I. DuPont De Nemours & Co., 165 F. Supp. 2d 1345, 1360 (S.D.

Fla. 2001).



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Here, no one establishes the fact that the software is not relevant or necessary to

Defendants’ underlying defense claim better than the U.S. Department of Justice itself.

You have not satisfied your burden of establishing that the requested information

is relevant to [your clients’] defenses . . . you assert that the testimony sought isneeded to support your clients’ defenses in this action, including “informationessential to answering questions that are central to the element of falsity in

Montgomery's libel claim.” The validity of these defenses turns, however, on

what the defendants knew or should have known at the time of the challengedstatements, not on what the government knew . . . See, Don King Prods. v. Walt

Disney Co., 40 So. 3d 40, 43 (Fla. Dist. Ct. App. 4th Dist. 2010) (in the context of

defamation, actual malice is defined as knowledge that the statement was false or

reckless disregard of whether it was false or not . . . in assessing “recklessdisregard,” the court found that a showing of “reckless disregard” requires

“sufficient evidence to permit the conclusion that the defendant in fact entertained

serious doubts as to the truth of his publication.” Id . . . As a result, your requestsare also not “reasonably calculated to lead to the discovery of admissible

evidence,” and the burden and expense of providing the requested testimony

would outweigh its likely benefit in the underlying action. See Fed. R. Civ. P.

26(b)(1), (b)(2)(C)(iii).

And the CIA has stated unequivocally that any such software is classified even if it currently

exists and cannot be made available to Defendants and their counsel. See Exhibit 2.

Fourth, even if Defendants could satisfy all three elements of spoliation – which they

cannot – the motion would remain subject to denial because there is no evidence of bad faith. “A

party’s failure to preserve evidence rises to the level of sanctionable spoliation “only where the

absence of that evidence is predicated on bad faith,” such as were a party purposely “tamper[s]

with the evidence.” Bashir v. AMTRAK , 119 F.3d 929, 931 (11th Cir. 1997) (emphasis added).

Mere negligence in losing or destroying evidence is insufficient to justify an adverse inference

instruction for spoliation. Id . Even grossly negligent discovery conduct does not justify a

spoliation sanction. Preferred Care Partners Holding Corp., 2009 WL 982460 at *7 (declining

sanctions even though a party’s performance in fulfilling discovery obligations was “clearly

egregious” and even though the party’s discovery failings “resulted from the grossly negligent



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oversights of counsel”). Indeed, district courts in the U.S. Court of Appeals for the Eleventh

Circuit regularly deny sanction requests even when there is an indisputable destruction of

evidence, which is not present here in any event. See Socas v. Northwestern Mu. Life Ins. Co. ,

No. 07-20336, 2010 WL 3894142 (S.D. Sept. 30, 2010) (denying motion to dismiss and other

sanctions when a doctor negligently failed to suspend her ordinary policy of purging inactive

patient files after learning the information in those files was relevant to her disability claim).

2.

Plainti ff Montgomery Did Not Violate Court Orders

Plaintiff Montgomery did not violate Court orders. First, Plaintiff Montgomery timely

objected to Magistrate Judge Goodman’s August 22, 2015 Order and October 19, 2015 Order,

see [Dkts. 125, 164 which are incorporated herein by reference]. The objections before the

Honorable Jose E. Martinez remain pending, and a stay has been requested pending disposition

of the later objections. [Dkt# 164]. Second, Plaintiff is still communicating with the FBI in good

faith, despite his belief, upon reflection, that he did not have the software at issue in the

information and hard drives he turned over to the FBI. Third, Magistrate Judge Goodman has

ruled that someone cannot produce that which he or she does not have in his or her possession. “

. . . [B]ut the issue is I cannot get blood out of a stone. I cannot now order Mr. Montgomery to

turn over the software, can I? Because he does not have it.” See Exhibit 6. See also Exhibit 9

(The Court: Okay. So in this situation [regarding a thumb drive of Eric Lichtblau] you’re

claiming the Defendant, Mr. Risen and his counsel, have said unequivocally on the record to a

Federal Magistrate Judge, we have turned over all documents. So I have to accept that as face

value, just like I accepted at face value your statements of certain categories that you turned over

all the documents.”).



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Tellingly, when Plaintiff’s counsel suggested a joint motion for a modest extension of

discovery of one month to give the FBI – which is inundated with terrorist threats and the email

investigation of Hillary Clinton as well as the serious criminal investigation resulting from

Plaintiff Montgomery’s whistleblowing – more time to locate any software and confirm that it is

classified, if it exists, defense counsel predictably refused, as they do not want the FBI to locate

it. See Exhibit 8.2 For the FBI to do so would undercut Defendants’ tactical and non-meritorious

attempt to try to get this case dismissed through sanctions.

Even if Plaintiff Montgomery violated a court order, which he clearly did not, the courts

of the Eleventh Circuit have a strong preference for a determination on the merits of a dispute.

See Beck v. Bassett , 204 F.3d 1322 (11th Cir. 2000) (reversing lower court’s entry of a default

judgment for discovery violations); see also Bernal v. All American Investment Realty, Inc., 479

F. Supp. 2d 1291 (S.D. Fla. 2007); Searock v. Stripling , 736 F.2d 650 (11th Cir. 1984) (reversing

lower court for r einstatement of appellant’s counterclaim since the lower court made no findings

that appellant’s failure to produce the documents was due to willfulness, bad faith, or fault).

B.

Plaintiff Montgomery Did Not Act in Bad Faith

To demonstrate that Plaintiff Montgomery destroyed or concealed evidence in bad faith,

the Defendants must establish all of the following four factors: (1) evidence once existed that

could fairly be supposed to have been material to the proof or defense of a claim at issue in the

case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the

spoliating party did so while it knew or should have known of its duty to preserve the evidence,

and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad

2 A one-month extension for discovery would not even necessitate that any pre-trial or trial dates

be pushed back. But Defendants and their counsel do not want to be cooperative, as it would

undercut their strategy which is not meritorious.



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faith by the reason proffered by the spoliator.” Calixto v. Watson Bowman Acme Corp., 2009

WL 3823390 at *16 (S.D. Fla. Nov. 16, 2009).

First, the Defendants cannot show that any material documents existed in the first place.

Even if the software did exist at one time, Plaintiff Montgomery, upon reflection, was not in

possession of it at the time this action commenced. See Exhibit 1. Defendants fail to meet the

first element of bad faith.

Second, there is no evidence whatsoever that Plaintiff Montgomery destroyed or engaged

in an “affirmative act causing the evidence to be lost.” To the contrary, Plaintiff Montgomery

made provisions with the FBI at the time he was required to turn over the 47 hard drives to

retrieve what might be requested in discovery in this case. See Exhibit 10. Defendants fail to

meet the second element of bad faith. See Bank of New York v. Meridien BIAO Bank Tanzania

Ltd., 171 F.R.D. 135, 152 (S.D.Y.Y. 1997) (“Under ordinary circumstances, a party’s good faith

averment that the items sought simply do not exist, or are not in his possession, custody or

control, should resolve the issue of failure of production . . .”).

Third, Plaintiff Montgomery, as stated throughout this proceeding, has tried to turn over

his documentation and hard drives to the FBI and other government law enforcement authorities

and congressional investigative committees for years – long before this action commenced. In

doing so, he had no duty to preserve evidence, if it exists, for opposing counsel. In addition, even

if Plaintiff Montgomery knew or should have known that some of the material he turned over to

the FBI is subject to a pending litigation and therefore a “litigation hold,” it is not a dispositive

issue in the Eleventh Circuit. The failure to timely place a litigation hold is often viewed as

“merely negligent” and insufficient to justify spoliation sanctions. Managed Care Solutions, 736

F. Supp. 2d at 1328; see also Southeastern Mech. Servs., 2009 WL 2242395 at *3-4 (declining to



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impose sanctions even after concluding that Plaintiff’s failure to adhere to a litigation hold was

“baffling”). Defendants fail to meet the third element of bad faith. Moreover, Plaintiff and his

counsel took steps to ensure that any electronic or other information Plaintiff Montgomery

turned over to the FBI – as by law he was required to do so as a whistleblower and material

government witness and generally – could be retrieved, most notably any alleged software at

issue, if it exists. See Affidavits of Larry Klayman and Dina James, attached as Exhibit 10.

Fourth, since there is no affirmative act causing any loss, it cannot be credibly explained

as not involving bad faith.

Simply put, Defendants have not come close to their burden of establishing bad faith on

the part of Plaintiff Montgomery. As set forth by the U.S. Department of Justice and the CIA,

any such software is classified and cannot be produced in any event. See Exhibits 2, 3.

C. Plaintiff Is Entitled To Attorneys’ Fees and Costs

Defendants brought this motion under Federal Rule of Civil Procedure 37. Rule 37

provides that “[i]f the motion is denied, the court . . . must, after giving an opportunity to be

heard, require the movant, the attorney filing the motion, or both to pay the party [] who opposed

the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees.”

Fed. R. Civ. P. 37(a)(5)(B). Because the Defendants have moved under Rule 37 and this motion

should be denied, the Court should award Plaintiff attorneys’ fees and their reasonable expenses.

IV. CONCLUSION

In this case, Defendants’ and their counsels’ latest salvo is part and parcel to their having

disparaged and attacked Plaintiff Montgomery and his claims from the outset, threatening

sanctions and lodging malicious and sanctimonious personal attacks against his failing health.

This is inappropriate and Defendants’ motion should be denied.



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Dated: November 16, 2015

Respectfully submitted,

/s/ Larry Klayman

Larry KlaymanKlayman Law FirmFL Bar No. 246220

7050 W Palmetto Park Rd.

Suite 15-287Boca Raton, FL 33433

(310) 595-0800

[email protected]

Attorney for Plaintiff



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 16th day of November, 2015, a true and correct copyof the foregoing was served via email and U.S. Mail upon the following:

Sanford Lewis BohrerBrian TothHolland & Knight, LLP

Suite 3000

701 Brickell AveMiami, FL 33131

Email: [email protected]


Laura R. Handman

Micah Ratner

Davis Wright Tremaine LLP1919 Pennsylvania Ave., N.W., Suite 800

Washington D.C. 20006-3401



Attorneys for Defendants

/s/ Larry Klayman

Larry Klayman, Esq.



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Exhibit 1

Case 1:15-cv-20782-JEM Document 178-1 Entered on FLSD Docket 11/16/2015 Page 1 of 2


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Exhibit 2



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U.S. Department of Justice Civil Division

Federal Programs Branch

Mailing Address Delivery Address Post Office Box 883 20 Massachusetts Ave., N.W.

Washington, D.C. 20044 Washington, D.C. 20530

Raphael O. Gomez Telephone: (202) 514-1318

Senior Trial Counsel Facsimile: (202) 616-8460 Email: [email protected]

October 16, 2015

BY ELECTRONIC MAIL

Laura R. Handman, Esq.Davis Wright Tremaine LLP

1919 Pennsylvania Ave., N.W., Suite 800Washington D.C. 20006-3401

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

Dear Ms. Handman:

On October 2, 2015, counsel for defendants in the above-referenced action notified the

Central Intelligence Agency ("CIA'') that pursuant to 32 C.F.R. Part 1905 (CIA’s Touhy

regulations), “(d)efendants seek discovery from the [CIA], its components, and its current and

former employees.” Ratner Declaration at 1. You also stated that pursuant to 32 C.F.R.

§ 1905.4(d), you offered the declaration of defendants’ attorney Micah J. Ratner “as a statementregarding the scope and relevance of the requested discovery.” Id . Further, as part of yourTouhy request, you served subpoenas for documents and testimony from CIA employees uponthe CIA. As you are aware, the CIA is not a party to this action, in which plaintiff brings a “libel

action against author James Risen, his publisher HMH, and its holding company HMHC arising

from statements in Chapter 2 ("Chapter") of his book, Pay Any Price: Greed, Power, and the

Endless War .” Id . at 1-2.

CIA’s Touhy regulations prohibit its employees from either producing documents ortestifying without prior authorization from the proper agency official. See 32 C.F.R. § 1905.3.

As set forth in its Touhy regulations, in determining whether information can be produced in

response to your requests, CIA officials will consider a number of factors in reaching a decision,including, but not limited to: whether production is appropriate in light of any relevant privilege;whether production is appropriate under the applicable rules of discovery; whether disclosure

would violate a statute; whether disclosure would be inconsistent with the statutory responsibility

of the Director of the CIA to protect intelligence sources and methods; and whether disclosurewould reveal classified information. 32 C.F.R. § 1905.4(c).

Your requests are currently under consideration by the CIA. As of the date of this letter,however, a determination has not yet been made as to whether any of the information you are

seeking can be produced, and therefore no production of documents or deposition testimony on

the designated dates may take place. See id .


mailto:[email protected]:[email protected]:[email protected]


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In the meantime, while your subpoenas for documents and testimony are being made pursuant to the CIA’s Touhy regulations, assuming, arguendo, that Rule 45 applies to your

request, the CIA preserves the following additional objections to the requests:

1.

As stated above, your Touhy subpoena requests for documents and testimony are underconsideration by the CIA and as a determination has not yet been made as to whether any

of the information you are seeking can be produced, no production of documents or

deposition testimony on the designated dates may take place. See 32 C.F.R. § 1905.3(a).

2. The CIA objects to the requests to the extent any response would risk or require the

disclosure of any classified national security information or other privileged U.S.Government information. To the extent a response to the requests would do so, no

response is required or will be provided. In addition, none of the objections set forth

herein should be construed to confirm or deny that the CIA maintains or has maintained

the information being sought in the request, and discussed in this response, or any

statement or allegation in the request or in Chapter 2 of “Pay Any Price: Greed, Power,and the Endless War.”

3. As set forth more specifically below, your requests violate Rules 26 and 45 of the Federal

Rules of Civil Procedure, see Fed. R. Civ. P. 26(c), 45(d)(1), (d)(3), on the grounds, interalia, that they are overly broad, unduly burdensome, unreasonably cumulative andduplicative, and fail to describe the information sought with reasonable particularity, and

to the extent they call for the production of privileged information. Compliance with

these requests will impose substantial burdens that will detract from the mission of theCIA.

4. The CIA specifically objects to your deposition requests on the ground that they are

overly broad, unduly burdensome, unreasonably cumulative and duplicative, and fail to

describe the information sought with reasonable particularity. The request seeks to

depose 4 current or former CIA employees concerning at least 12 topic areas.Depositions of current or former CIA officials in third party litigation impose substantial

burdens on the CIA’s mission in light of the need to ensure that any U.S. Government

information is authorized for disclosure and that any classified national securityinformation is not disclosed. Again without confirming or denying any allegation or

statement, you seek to depose several current or former high-ranking agency officials on

an extraordinarily broad range of topics and matters in which the CIA was allegedlyinvolved, going back over a decade. Your deposition requests are also “unreasonably

cumulative [and] duplicative,” see Fed. R. Civ. P. 26(b)(2)(C)(i), in that many of the

topics on which you seek deposition testimony are covered in your requests for agencydocuments.

5. The CIA also specifically objects to your document requests on the ground that they are

overly broad, unduly burdensome, unreasonably cumulative and duplicative, and fail todescribe the information sought with reasonable particularity, and to the extent they call

for the production of classified national security or other privileged information. In

particular, many of the requests seek information that would be expected to be



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

released public reports. See, Defs. Mot. Dismiss at 36, ECF No. 25.

6. The document requests also seek information that is otherwise available from sources that

are more convenient, less burdensome, and/or less expensive. Defendants are currently

seeking the same information and material in the instant action from plaintiff. Forexample, defendants seek a copy of Mr. Montgomery’s software from the CIA when it

currently has obtained a court order in the instant action for production of such software

from plaintiff. See Post Discovery Hearing Order dated August 22, 2015, ECF No. 107.

7. The subpoena "fails to allow reasonable time for compliance." Fed. R. Civ. P.

45(d)(3)(A)(i). The subpoena was served on October 2, 2015, and requests production ofdocuments by October 21, 2015. Given the breadth of the subpoena, 12 working days

does not even come close to providing sufficient time for CIA to ascertain whether and to

what extent the CIA can provide any response to the request.

8.

You have not satisfied your burden of establishing that the requested information isrelevant to [your clients’] defenses. For example, you assert that the testimony sought is

needed to support your clients’ defenses in this action, including “information essential toanswering questions that are central to the element of falsity in Montgomery's libel

claim.” Ratner Declaration at 3. The validity of these defenses turns, however, on what

the defendants knew or should have known at the time of the challenged statements, noton what the government knew. See, Don King Prods. v. Walt Disney Co., 40 So. 3d 40,

43 (Fla. Dist. Ct. App. 4th Dist. 2010) (in the context of defamation, actual malice is

defined as knowledge that the statement was false or reckless disregard of whether it wasfalse or not. [citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, (1964)]); in

assessing “reckless disregard,” the court found that a showing of “reckless disregard”requires “sufficient evidence to permit the conclusion that the defendant in fact

entertained serious doubts as to the truth of his publication.” Id . (quoting the Supreme

Court in St. Amant v. Thompson, 390 U.S. 727, 731 (1968). As a result, your requests are

also not “reasonably calculated to lead to the discovery of admissible evidence,” and the burden and expense of providing the requested testimony would outweigh its likely

benefit in the underlying action. See Fed. R. Civ. P. 26(b)(1), (b)(2)(C)(iii).

The foregoing objections are not exclusive, and the CIA reserves the right to assert further

objections in response to the subpoenas requesting documents and testimony as appropriate,

including, but not limited to, privileges and protections such as the attorney-client privilege, thework product doctrine, the deliberative process privilege, and the need to withhold classified

information.

* * *



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For all these reasons, CIA objects to the subpoenas and has not authorized the production

of the requested documents or deposition testimony at the date, time, and place specified on thesubpoenas. You will be advised once the CIA has made a final decision on your requests

pursuant to its Touhy regulations.

Sincerely,

/s/

Raphael O. Gomez



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Exhibit 3



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EXHIBIT 5

DOCUMENTS BEING FILED

UNDER SEAL SHOWING

COMMUNICATIONS BY

AND BETWEEN DENNIS

MONTGOMERY AND THE

FBI



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Exhibit 6



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Exhibit 7



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Exhibit 8



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Exhibit 9



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Exhibit 10



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Case 1:15-cv-20782-JEM Document 127 Entered on FLSD Docket 09/09/2015 Page 1 of 6Case 1:15-cv-20782-JEM Document 178-10 Entered on FLSD Docket 11/16/2015 Page 2 of 7


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Exhibit 11



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montgomery v risen # 178 | montgomery opp to d motion for sanctions

Documents