Documente Academic
Documente Profesional
Documente Cultură
TABLE OF CONTENTS
I.
ARGUMENT ......................................................................................................................11
A. The Court Should Sanction Montgomery and His Counsel for Spoliation
and for Violating Three Court Orders ...........................................................................11
1.
2.
2.
C. The Court Should Award Fees and Costs Against Plaintiff and His
Counsel .........................................................................................................................20
IV. CONCLUSION ......................................................................................................................20
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Barnes v. Dalton,
158 F.3d 1212 (11th Cir. 1998) ...............................................................................................12
Bashir v. Amtrak,
119 F.3d 929 (11th Cir. 1997) .................................................................................................15
Cabinetware Inc. v. Sullivan,
1991 WL 327959 (E.D. Cal. July 15, 1991) ............................................................................16
Calixto v. Watson Bowman Acme Corp.,
2009 WL 3823390 (S.D. Fla. Nov. 16, 2009)....................................................................12, 13
Carlucci v. Piper Aircraft Corp.,
102 F.R.D. 472 (S.D. Fla. 1984) ..............................................................................................19
In re Complaint of Boston Boat III, L.L.C.,
2015 WL 5156561 (S.D. Fla. Sept. 2, 2015) ................................................................... passim
Computer Assocs. Intl Inc. v. Am. Fundware Inc,
133 F.R.D. 166 (D. Colo. 1990) ..............................................................................................17
Coquina Invs. v. TD Bank, N.A.,
760 F.3d 1300 (11th Cir. 2014) ...............................................................................................18
Flury v. Daimler Chrysler Corp.,
427 F.3d 939 (11th Cir. 2005). ........................................................................................ passim
Gonzalez v. Business Representation Intl, Inc.,
248 F.R.D. 644 (S.D. Fla. 2008) ........................................................................................14, 16
Gratton v. Great Am. Commcns,
178 F.3d 1373 (11th Cir. 1999) ...............................................................................................19
Griffin v. Alcoa,
564 F.2d 1171 (5th Cir. 1977) .................................................................................................19
Hashemi v. Campaigner Publns, Inc.,
737 F.2d 1538 (11th Cir. 1984) ...............................................................................................19
Hunt v. Liberty Lobby,
720 F.2d 631 (11th Cir. 1983) .................................................................................................11
iii
iv
Under the Courts order (ECF No. 154), Defendants James Risen (Risen), Houghton
Mifflin Harcourt Publishing Company (HMH), and Houghton Mifflin Harcourt Company
(HMHC), improperly sued as HMH Holdings, Inc., (collectively Defendants), file this
Memorandum of Law in Support of Their Motion for Sanctions.
I.
PRELIMINARY STATEMENT
Plaintiff Dennis Montgomery (Montgomery) has now violated three court orders and
spoliated what could be the most important evidence in the entire case, the software central to
his burden to prove falsity in this libel claim. (Stay Order, ECF No. 122, at 6.) Defendants seek
the sanction of dismissal because Montgomery deprived them of a fair defense.
First, the Court should sanction Montgomery because in bad faith, he spoliated the
software and violated three discovery orders. Montgomery initially refused to produce the
software, which Defendants had requested since June 1, 2015. Montgomery then testified under
oath on August 20, 2015, and his counsel represented to this Court the next day, that
Montgomery gave the only copy of the software to the FBI that week. Without telling
Defendants or seeking leave of court, Montgomery gave his software to the FBI in a massive
document dump from which the agency could not retrieve the software, at the very least not
without undue burden. Although Montgomery now claims self-servingly after this Court
warned him his conduct could lead to severe sanctions that he believes he did not have
access to his own software and did not give it to the FBI, his shifting story and
misrepresentations only underscore his bad faith.
Second, because Montgomery spoliated the software and violated three discovery orders
in bad faith, and no lesser sanction will suffice to cure the extreme prejudice he caused
Defendants, the Court should recommend dismissal, the inevitable result of his failure to produce
what this Court has called the critical evidence, dooming any chance for him to carry his
burden of proving substantial falsity.
Finally, under Rule 37(b), the Court should also award Defendants attorneys fees and
costs against Montgomery and his counsel as a monetary sanction for their egregious conduct.
1
II.
FACTUAL BACKGROUND
February 24, 2015 Montgomery and his counsel file the Complaint, asserting that
Defendants defamed him by falsely stating that his software did not work or did not exist.
They have a Rule 11(b)(3) duty to have the software as supporting evidence.
June 1, 2015 Defendants request a copy of the software and the location of the software.
July 1, 2015 Montgomery objects to the discovery requests as, e.g., vague and irrelevant.
July 15, 2015 After Defendants explain his objections violate the local rules, he objects to
producing the software, now asserting it is classified, and refuses to provide the locations.
August 4, 2015 Defendants discovery-dispute brief shows the software is not classified.
August 18 or 19, 2015 Montgomery gives his only copy of the software to the FBI.
August 20, 2005 Montgomery testifies under oath at his deposition that he gave the
software to the FBI the day before and he did not keep a copy.
August 21, 2015 Montgomerys counsel represents to the Court that Montgomery gave his
only copy of the software to the FBI on August 18, 2015 for a classification review and he
did not keep a copy. The Court finds the software is highly relevant.
August 22, 2015 The Court orders Montgomery to produce documents on the location of
the software, including correspondence with the FBI, by August 31, and to use his access to
non-classified information to produce the software by September 4.
August 31, 2015 Montgomery fails to produce correspondence with the FBI. He moves to
stay the August 22 order pending a forthcoming objection.
September 3, 2015 The Court denies the motion to stay, finding the software is critical
and that Montgomerys purpose was to, in effect, seek to sequester what could be the most
important evidence in the entire case by giving it to the FBI.
September 8, 2015 The FBI asks Montgomery for more detail to find the software.
October 16 and 19, 2015 The Court orders Montgomery to produce all correspondence
with the FBI by October 20, to provide the FBI comprehensive detail to find the software or
state he cannot by October 21, and to produce the software by October 26.
October 21, 2015 Montgomery files a declaration contradicting his prior testimony and his
counsels representations to the Court, now swearing he believes he did not have access
to the software and did not provide it to the FBI.
October 23, 2015 The FBI says it will not search for the software since Montgomery now
swears he doubts he gave it to the FBI and he fails to give enough detail to find the software.
October 26, 2015 Montgomery fails to produce the software. Rather, he objects and
moves for a stay, representing that the FBI is still looking for the software.
2
A.
Defendants June 1 Request for the Location of the Relevant Software and its
Production, and Montgomerys July 1 and 15 Refusals to Comply
On February 24, 2015, Montgomery brought this libel action against author James Risen,
his publisher, and its holding company, alleging that statements in Chapter 2 (the Chapter) of
Pay Any Price: Greed, Power, and Endless War (the Book) that report allegations that
Montgomery defrauded the federal government by selling it useless software were false and
defamatory.1 To defend against Montgomerys claim that statements in the Book are false
because the software allegedly works, on June 1, Defendants requested a copy and the locations
of the software referred to in the Amended Complaint, including Al Jazeera software (noise
filtering software), the object recognition software, and video compression software mentioned
in the Chapter.2
On July 1, Montgomerys counsel objected to the request to produce the software as
vague, ambiguous, overly broad, and burdensome, and the request to disclose the
locations as largely irrelevant.3 After Defendants warned Montgomerys counsel that the
boilerplate objections violate the local rules, on July 15, Montgomery objected to Defendants
discovery again, refusing to respond concerning the location of the relevant software.4 He also
refused to produce a copy of any software, even under the protective order, asserting that he is
not legally permitted to produce secret classified information.5
B.
(ECF No. 44, Am. Compl. 23, 48, 49, 65, 120-27, 181-84, 202-21, 230-36, 245-48, 259,
262.) A motion to dismiss or transfer has been fully submitted since June 11, 2015. (ECF
No. 77.) Defendants intend to move for summary judgment by or before December 14, 2015,
after discovery closes on November 19, 2015, arguing, inter alia, Montgomerys failure to
produce evidence that would permit a reasonable jury to find substantial falsity.
2
(ECF No. 90-1, Defs. Interrogs. 9-15 & Reqs. for Produc. 7-15, 26-32, 36-47, 53.)
3
(Pl.s July 1 Resp. & Objections to Interrog. 9 & Reqs. for Produc. 8, attached hereto as Ex. 1.)
4
(ECF No. 90-2, Pl.s July 15 Resp. & Objections to Interrog. 9.)
5
(Id. 9-15) (objecting that the interrogatory calls for information some of which the Plaintiff is not
legally permitted to disclose as being confidential or secret); (Id., Pl.s July 15 Resp. & Objections
to Reqs. for Produc. 7-15, 26-32, 36-47, 53) (objecting on grounds of legal restrictions on the
Plaintiff responding or that he is not legally permitted to disclose all documents or information).
3
in Montgomerys previous cases show that his software is not classified, yet he has repeatedly
refused to produce it. (ECF No. 94.) In a case in which Montgomerys former employer,
eTreppid, sued Montgomery for allegedly misappropriating the subject software, the U.S.
government moved for and obtained a protective order under the state secrets privilege to protect
certain classified information from discovery (U.S. Protective Order).6 However, the U.S.
Protective Order specifically excluded Montgomerys software from its scope.7 Thus, the
magistrate judge in Nevada found that [t]he clear understanding in drafting and issuing th[e]
[U.S.] protective order was that the parties would be discussing the nature and capabilities of the
technology, and the type of work each party performed for the government.8
Nonetheless, Montgomery refused to produce the software in both the Nevada litigation
and in his later bankruptcy proceedings in which the U.S. Protective Order was also entered. In
the Nevada action, the magistrate and district judges repeatedly ordered Montgomery to produce
the software, but he refused.9 Thus, the district judge held Montgomery in contempt, imposing a
penalty of $2,500 per day until he produced the software.10 Instead of producing the software,
Montgomery settled the action and signed confessions of judgment for $25 million.11 Then,
Montgomery declared bankruptcy, continued to refuse to produce or describe the software in
bankruptcy, and was thus denied discharge.12 Following this same pattern here, Montgomery is
withholding the software again when it is central to his burden to prove substantial falsity.
C.
In Montgomerys August 20, 2015 deposition, he testified that he searched for the
6
software in response to Defendants discovery and gave his only copy of the software to the FBI
on August 19, 2015. (Pl.s Dep. Tr. 127:12-15; 128:1-25; 129:1-4; 131:12-22; 132:21-23,
attached hereto as Ex. 2.) Notably, Montgomery testified:
Q:
A:
Q:
A:
Do you have the software that you used for the Al Jazeera work?
No.
Where is it?
I gave it to the government.
(Pl.s Dep. Tr. 127:13-16.) Thus, Montgomery testified under oath a mere two months ago that
he gave the software to the government.
D.
On August 21, the Court held a hearing on the adequacy of Montgomerys responses and
objections to Defendants discovery requests, including the dispute over Montgomerys refusal
to produce the software. At the hearing, Montgomerys counsel confirmed what Montgomery
testified about at his deposition the day before that on August 18 or August 19, Montgomery,
without seeking leave of court or informing Defendants, turned over to the FBI and to the
Department of Justice what he claimed was the one and only copy of the software that
Defendants have since June 1 requested from Montgomery in this action. Montgomerys
counsel represented the following to the Court:
THE COURT: The FBI has the software?
MR. KLAYMAN: They have the software, yes.
THE COURT: How did they get it?
MR. KLAYMAN: Because Mr. Montgomery provided it to them.
THE COURT: When?
MR. KLAYMAN: He provided it to them three days ago. It has been in the
process to provide that to them and he provided them a lot of other information
too, which they are looking at because it is classified information and he is a
whistleblower.
***
THE COURT: And you did mention to me three days ago either you had or Mr.
Montgomery submitted the software so the FBI so the FBI could confirm one way
or the other if the software contained classified information; is that correct?
MR. KLAYMAN: That is correct.
THE COURT: And so when this software was turned over three days ago, did
either you, or Mr. Montgomery, keep a copy, or you just gave the software?
5
The August 22 Order to Produce the Software and Obtain It from the FBI
On August 22, the Courts written order required Montgomery to use his self-described
right of continued access to non-classified information (in relation to his turning over the subject
software to the FBI) and produce the software to Defendants. (Aug. 22 Order 6, ECF No.
107.) The order also required him to produce all documents concerning Defendants request
for production number 7 about communications with persons who know about the software and
of its location, which would now include documents related to the disclosure and production of
the subject software to the FBI (id. 5). The order required him to turn over all documents . . .
related to the disclosure and production of the subject software to the FBI by August 31, 2015,
and to produce the software to Defendants by September 4, 2015. (See id. 5-6.)
F.
On August 31, 2015, although ordered to produce all documents related to the disclosure
and production of the software to the FBI by that day (Aug. 22 Order 5), Montgomery failed
to comply. Instead, Montgomery moved for a stay of the part of the August 22 Order requiring
him to produce the software and related documents pending his objection. (ECF No. 112.)
G.
On September 3, 2015, the Court issued an order denying Montgomerys motion to stay.
(Stay Order, ECF No. 122.) The Court reiterated that Montgomery shall produce by
September 4, 2015 all documents encompassed in paragraph 6 of the Discovery Order and shall
also produce the software by using the self-described right of continued access to the software
which he turned over to the FBI without maintaining a copy for himself. (Id. at 2.)
The Court found that Montgomery was not likely to succeed on the merits of his
objection that the software is not relevant because Risen did not have the software when he
wrote the Chapter. (Id. at 4.) The Magistrate Judge was not at all persuaded by Montgomerys
argument and instead agreed with Defendants position that the software is highly relevant.
(Id. at 5.) The Court recognized that the theme of Montgomerys Amended Complaint is that
Risen falsely accused Montgomery of being a con man and a fraud who tricked the Government
into purchasing unworkable object recognition software and who asked that tests of the software
be falsified. (Id.) The Court rejected Montgomerys argument, reasoning that Plaintiffs
burden to prove falsity does not hinge on whether he [Risen] ever had a copy of the software
but rather the critical fact is whether in fact the software worked. (Id.) Accordingly,
Defendants have a right to inspect and test the software, the Court concluded; It is highly
relevant and Montgomery must produce it. (Id.) In fact, the Court found, the software is
critical evidence. (Id. at 6.)
The Court found that the overall equities of the discovery dispute and the Discovery
Order at issue further militate against Plaintiffs position because he recently, and secretly,
turned over the software to the FBI without keeping a copy, without advising Defendants of his
plan to do so, without advising this Court of his strategy and without seeking leave of Court
. . . . (Stay Order, ECF No. 122, at 6.) Montgomerys purpose was to, in effect, seek to
sequester what could be the most important evidence in the entire case. (Id.)
H.
On September 4, Montgomery defied the Courts two orders by failing to produce the
software that day. Rather, Montgomery filed his objection. (ECF No. 125.)
I.
On September 8, 2015, James Baker, the General Counsel of the FBI, wrote a letter to
Montgomerys counsel, and copied this Court and Defendants counsel, to correct any
misunderstandings about the conditions under which the FBI took possession of the materials
from Mr. Montgomery and to address the means by which Montgomery will be afforded
access to the materials he provided to the FBI. (ECF No. 126, at 1.)
Mr. Baker stated that, besides materials Montgomery gave to the FBI purportedly as a
whistleblower, Montgomery had other materials that were wholly irrelevant to the FBI inquiry
that may be on the drives such as the software at issue. (Id. at 2.) But Montgomery wished to
turn over every computer drive in his possession to the FBI. (Id.) Montgomery and the FBI
agreed to establish a procedure to provide Montgomery access to non-classified information if it
did not unduly burden the FBI. (Id.) But Montgomery did not associate the potential
retrieval of this information with any pending civil litigation. (Id.) Further complicating the
task, Montgomery told the FBI that Top Secret, compartmented information may reside
throughout the hard drives, leading the FBI to treat all Montgomerys hard drives as
presumptively classified. (Id. at 3.) In stark contrast to Montgomerys counsels
representations to this Court, Montgomery never asked, and the FBI never agreed, for the
Government to undertake a classification review of [the] software at issue. (Id.)13
Mr. Baker also told Montgomery that the August 26 letter Montgomerys counsel sent to
the FBI was insufficient. [N]otably absent is any information which would assist the
Government in locating and producing the software at issue in Montgomery v. Risen. (ECF No.
126, at 3.) Mr. Baker explained that a letter Montgomery gave the FBI on August 19, 2015 said
that the hard drives contained 51.6 million files amounting to 600 million pages. (Id.)
Combined with Montgomerys claim to the FBI that classified information was contained
throughout the hard drives, this massive amount of information on the hard drives means
there is no reasonable way for the Government to locate and provide the alleged software,
13
Mr. Baker then offered a classification review if the government finds the software. (Id. at 4.)
8
At a hearing on October 16 (Hrg Tr., attached hereto as Ex. 3), the Court issued an order,
followed by a written order on October 19. (ECF No. 154.) The order again required
Montgomery to produce his communications with the FBI about the software, now by October
20. (Id. 2.)15 It required Montgomery to give the FBI comprehensive instructions on how to
locate the software within the hard drives he turned over to the FBI or, if he cannot tell the FBI
exactly how to identify the software, then he shall so state in the email. (Id. 3.) Last, the
order required him to produce the software by October 26, 2015, which he failed to do. (Id. 4.)
K.
On October 21, 2015, rather than comply with the Courts order to provide the FBI
sufficient instructions to find the software or state that he cannot do so, Montgomery
contradicted his own previous testimony under oath in his deposition, and his counsels
representations in August to the Court, in a declaration. That day, Montgomery filed a
declaration, swearing under oath: Based on my personal knowledge and belief, upon searching
my memory, I do not believe that I have had access to any of the subject software, nor did I
provide it to the Federal Bureau of Investigation (FBI) when I turned over the drives . . . .
(Pl.s Decl., ECF No. 158-1.) He does not explain how he supposedly does not have access to
his own software, where it is now located, or explain this change of story after this Court made
14
Mr. Baker therefore asked Montgomery to provide the FBI: (1) the number or designation of
the drive on which the software is present; (2) the file name of the software; (3) the creation date
of the software; and (4) any other identifier(s) for the software. (Id. at 4.)
15
Although previously ordered, Montgomery did not produce the July 28 and August 12, 2015
letters referenced in Mr. Bakers September 8 letter or any response to Mr. Bakers request for
further information to locate the software until October 20.
9
clear in its October 16 and 19 orders that he could face dismissal sanctions.16 Nor does he
explain whether he refers to the Al Jazeera software, the object recognition software, or video
compression software, all of which are the subject of the Chapter and the document request.
Shifting the burden to the FBI, he states: However, I am today providing some additional
information (attached) which may allow the FBI to see if the software in whole or in part
exists on the drives I turned over to the FBI to conduct its ongoing classification review. (Id.)
L.
Montgomery Violates the Orders to Give the FBI Enough Detail by October
21 to Find the Software and to Produce the Software by October 26
On October 23, 2015, Mr. Schwartz emailed Montgomerys counsel that Mr.
Montgomery has now stated that he does not believe that the subject software is on the hard
drives. (Email from Ted Schwartz, attached hereto as Ex. 4.) Not surprisingly given that
belief Mr. Montgomery has not provided us the detailed information requested in the
September 8, 2015 letter which would allow us, without undue burden, to locate the software
among the 51.6 million files which he claims to have provided us. (Id.) Mr. Schwartz repeated
that the FBI would not conduct a classification review. (Id.) Mr. Schwartz concluded that, the
FBI will not search the drives to locate software requested in the Risen litigation. (Id.)
(emphasis added).17
On October 26, 2015, Montgomery did not produce the software. He filed another
objection and request for a stay. (ECF No. 164.) In it, he represented, notwithstanding Mr.
Schwartzs email, that [t]he FBI is working with due speed to search through the millions of
16
Tellingly, Mr. Klayman told the Court he knew from day one that Defendants would move
to dismiss the case if the software the crucial evidence was not produced, yet inexplicably
took no steps to ensure that the software exists or to preserve a copy of the software. (Oct. 16
Hrg Tr. at 17:21-18:2) ([M]aybe we can get the magistrate judge and/or the judge to rule that
the case should be dismissed if you dont turn over something that we never even had anyway
when we wrote the book or relied on. See, and its clever, I predicted this to my colleagues from
day one, that Defendants would try this, okay, and this obviously has come to be true.).
17
Plaintiffs counsel responded to Mr. Schwartz by letter later that night, copying Judge Royce
Lamberth (D.D.C.), offering to provide information if that is required, but my client believes he
has given what it needs to pinpoint any software, if it exists, on the 47 hard drives, which
General Counsel Baker noted in his September 8, 2015, letter containing 51.6 million files
amounting to 600 million pages. (Letter from Mr. Klayman, attached hereto as Ex. 5.)
10
files in order to determine whether such software does exist in the documents provided by
Plaintiff without referencing Mr. Schwartzs email to the contrary. (Id. at 6.)
III.
A.
ARGUMENT
The Court Should Sanction Montgomery and His Counsel for Spoliation and
for Violating Three Court Orders
1.
11
427 F.3d 939, 947 (11th Cir. 2005). Just as the vehicle, which was the very subject of his
lawsuit, needed to be preserved and examined as evidence central to his case in Flury,
Montgomery had a duty to preserve the software in his own libel case alleging falsity because he
claimed the software worked. Id. at 945; Boston Boat, 2015 WL 5156561, at *12 (same as to
boat deck on which plaintiff allegedly slipped and fell).
Third, the Court already found that the software is not only relevant, it is highly
relevant and critical to Montgomerys burden to prove the element of falsity.18 (Aug. 21 Hrg
Tr. 32:23-24, ECF No. 111-1; Stay Order, ECF No. 122, at 5-6); e.g., Boston Boat, 2015 WL
5156561, at *10 (finding destroyed boats deck area and carpet in slip-and-fall case was
critical and crucial evidence). The Court recognized that the theme of the Amended
Complaint is that Risen falsely accused Montgomery of being a con man and a fraud who
tricked the Government into purchasing unworkable object recognition software and who asked
that tests of the software be falsified. (Stay Order, ECF No. 122, at 40.) The Court found that
Plaintiffs burden to prove falsity hinges on the the critical fact [of] whether in fact the
software worked, and thus Defendants have the right to inspect and test the software (id. at 5)
a finding the Court reaffirmed at the October 16 hearing. (Oct. 16 Hrg Tr. 18:3-23, Ex. 3.)
Finally, Montgomery acted in bad faith. In this Circuit, [t]he key to unlocking a courts
inherent power [to impose sanctions for spoliation] is a finding of bad faith. Barnes v. Dalton,
158 F.3d 1212, 1214 (11th Cir. 1998). Defendants may establish bad faith through either direct
or circumstantial evidence. Boston Boat, 2015 WL 5156561, at *9; Calixto v. Watson Bowman
Acme Corp., 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009). Here, Defendants satisfy the
four factors to demonstrate that Montgomery destroyed or concealed evidence in bad faith
through circumstantial evidence: (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
18
E.g., Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986) (holding under the
First Amendment that plaintiffs bear the burden to prove falsity).
12
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 faith by the
reason proffered by the spoliator. Boston Boat, 2015 WL 5156561, at *9; Calixto, 2009 WL
3823390, at *16. See Managed Care Solutions, 736 F. Supp. 2d at 1331-32.
First, this element is established because this Court found the software critical
evidence, which is an even higher standard than material. See Boston Boat, 2015 WL
5156561, at *11 (The Undersigned construes material and critical to be similar standards,
but, to the extent that they are different, critical would be the higher burden, and the Undersigned
previously found that the evidence was critical.).
Second, Montgomery committed an affirmative act by recently, and secretly, turn[ing]
over the software to the FBI without keeping a copy, without advising Defendants of his plan
to do so, without advising this Court of his strategy and without seeking leave of Court. (Stay
Order, ECF No. 122, at 6.) The Court based this finding on his testimony under oath at his
deposition on August 20 and his counsels confirmation to the Court on August 21. Moreover,
the FBI not Montgomery later revealed that Montgomery provided the software to the FBI in
a massive document dump of over 51 million files, and he failed to provide the FBI sufficiently
detailed instructions to find the software without, at a minimum, causing an undue burden. (ECF
No. 126, at 3; Schwartz Email, Ex. 4.) This concealment of evidence was undoubtedly an
affirmative act. Boston Boat, 2015 WL 5156561, at *11 (finding defendants decision to
refurbish[] did not happen by accident; rather defendant intentionally decided to rip out the
carpeting and grind down the deck even though it knew about the pending lawsuit).
Third, as explained above, Montgomery knew or should have known well before the
litigation alleging that his software worked that he had to preserve the software itself. His
counsel, an experienced libel lawyer, said he knew from day one that failure to produce the
software could be an issue. (See note 16, supra.)
Fourth, Montgomery has not provided any reason, legitimate or otherwise, why he
cannot produce his own software and identify its current locations to Defendants. See Swofford
13
v. Eslinger, 671 F. Supp. 2d 1274, 1282 (M.D. Fla. 2009) (finding that knowing and willful
disregard for the clear obligation to preserve evidence that was solely within the possession and
control of the Defendants and whose contents have no other source than that which has now been
spoliated indicated bad faith); Boston Boat, 2015 WL 5156561, at *12 (finding bad faith when
defendant could not reasonably argue the boat deck was irrelevant to personal injury suit
allegedly caused by the defective deck). There is no reason why he could not keep a copy of his
software when, as he testified under oath and his counsel confirmed, he gave the FBI his only
copy nearly three months after Defendants requested it in discovery and a few days before the
parties held a discovery hearing before this Court about production of the software. He does not
explain why he could not provide the FBI sufficiently detailed instructions to find the software in
the massive document dump he foisted upon the FBI in the midst of this discovery dispute.
Then, after the Court warned him that Defendants could move for sanctions, including dismissal,
if he did not comply by October 26, 2015, Montgomery contradicted his sworn testimony and his
counsels representations and said he now believe[d] he did not have access to his own
software and did not provide the software to the FBI.19
Montgomerys failure to produce the software based on changing, legally insufficient
stories in the face of Defendants repeated requests and court orders is evidence of bad faith or
willfulness. See Gonzalez v. Business Representation Intl, Inc., 248 F.R.D. 644 (S.D. Fla. 2008)
(finding bad faith when plaintiff made false statements, and obstructed access to highly relevant
evidence by revoking medical authorization); Telectron, Inc. v. Overhead Door Corp., 116
19
If Montgomerys latest declaration under oath is true that he did not have access to the
software or give it to the FBI in August then he and his counsel lied to the Court and led
Defendants, this Court, and the FBI on a wild goose chase. These facts give rise to the strong
inference that: (1) he does not have access to the software because he spoliated it; (2) he violated
Rule 11(b)(3) by bringing this suit when he knew he could not prove falsity, a critical element of
any libel claim; (3) he never had access to the software or it never existed, thus explaining his
refusal to turn it over in the Nevada litigation and his bankruptcy case; or (4) he knows the
software does not work and never worked, and thus he dare not expose it to scrutiny. Under any
of these circumstances, Defendants are entitled to dismissal because Montgomery cannot prove
falsity, he acted in bad faith, and he caused severe prejudice to the Defendants.
14
F.R.D. 107, 131-36 (S.D. Fla. 1987) (entering default judgment under inherent powers and Rule
37 for destroying relevant documents after party served with complaint and requests for
production, and flagrant dishonesty); PSG Poker, LLC v. DeRosa-Grund, 2008 WL 190055, at
*12 (S.D.N.Y. Jan. 22, 2008) ([F]ailure to either produce relevant documents or a credible story
regarding their whereabouts despite the admonitions of this Court and repeated requests from
the plaintiffs can only be interpreted as an intentional and willful act). At bottom,
Montgomerys purpose was to, in effect, seek to sequester what could be the most important
evidence in the entire case. (Stay Order, ECF No. 122, at 6.) This egregious conduct
sustain[s] an inference of consciousness of a weak case the very definition of bad faith.
Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997).
2.
An independent basis for sanctions is that Montgomery violated three court orders
requiring him to produce the software. Under Rule 37, [i]f a party . . . fails to obey an order to
provide or permit discovery, including an order under Rule . . . 37(a), to compel as entered here,
the Court may issue a variety of sanctions. Fed. R. Civ. P. 37(b)(2)(A). Montgomery violated
the August 22 order and stay order to produce the software by September 4, 2015, based on the
insufficient excuse that he objected to the discovery order.20 Montgomery also violated the
August 22 order and October 19 order to exercise his right of continued access to non-classified
information by failing to give the FBI sufficient information to find the software, without, at a
minimum, undue burden. Most recently, he violated the October 16 and 19 orders to produce the
software by October 26.
20
E.g., TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1260 (M.D.
Fla. 2013) (explaining that an object[ion] to a magistrate judges order on a non-dispositive
matter . . . does not stay the order or relieve the party of the obligation to comply with the
order.). Defendants provided this authority to Montgomerys counsel on September 24, 2015.
(Email to Mr. Klayman, attached hereto as Ex. 6.)
15
B.
The Court has broad discretion to fashion a remedy for spoliation. See Optowave Co. v.
Nikitin, 2006 WL 3231422, at *7 (M.D. Fla. Nov. 7, 2006) (citing Chambers v. NASCO, Inc.,
501 U.S. 32, 43 (1991)). The Court determines the appropriate sanction . . . on a case-by-case
basis. Id. at *12 (citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004)).
Sanctions the Court may impose against a plaintiff for spoliation include: (1) dismissal; (2) a
finding, adverse inference, or rebuttable presumption instruction to the jury; and (3) an award of
fees and costs. See Flury, 427 F.3d at 945. These sanctions for discovery abuses are intended
to prevent unfair prejudice to litigants and to insure the integrity of the discovery process. Id. at
944 (citing Gratton v. Great Am. Commcns, 178 F.3d 1373, 1374 (11th Cir. 1999)).
Factors to determine the proper sanctions include: (1) the willfulness or bad faith of the
party responsible for the loss or destruction of the evidence; (2) the degree of prejudice sustained
by the opposing party; and (3) what is required to cure the prejudice. Boston Boat, 2015 WL
5156561, at *12 (citation and quotation marks omitted). Dismissal is appropriate in this Circuit,
when, as here, plaintiff spoliates in bad faith shown by misrepresentations, intentional acts, and
repeated violations; plaintiff causes severe prejudice by obstructing access to the critical
evidence on a case-dispositive element of plaintiffs burden; and only dismissal will cure the
prejudice the spoliation caused. Flury, 427 F.3d at 947 (reversing adverse-inference sanction for
spoliation and instructing trial court to dismiss); Gonzalez, 248 F.R.D. 644, 646-47 (dismissing
as sanction for bad faith spoliation); Telectron, 116 F.R.D. at 131-36 (same).
Here, the bad faith and prejudice are extreme substantially depriving Defendants of
their critical evidence. Just as the vehicle in Flury was, in effect, the most crucial and
reliable evidence available to the parties, the software could be the most important evidence in
the entire case. (Stay Order, ECF No. 122, at 6.) See Flury, 427 F.3d at 944-45; Cabinetware
Inc. v. Sullivan, 1991 WL 327959, at *5 (E.D. Cal. July 15, 1991) (imposing default as only
sanction sufficient to serve both the necessary deterrent and punitive functions when defendant
16
destroyed source code for allegedly infringing computer program). Moreover, the plaintiff in
Flury was fully aware that defendant wished to examine the vehicle yet ignored defendants
request and allowed the vehicle to be sold for salvage without notif[ying] . . . defendant. Id. at
945. Here, Montgomery gave his only copy of the software to the FBI in a document dump,
without telling Defendants, preventing Defendants expert from inspecting it, which is more
egregious than Flury, because Defendants here had requested the software and its location for
months in discovery. Computer Assocs. Intl Inc. v. Am. Fundware Inc, 133 F.R.D. 166, 169-70
(D. Colo. 1990) (dismissing as sanction since willful destruction occurred after complaint filed,
request for production, and motion to compel emphasizing importance of destroyed source code).
As in Flury, Plaintiffs failure to preserve the [software] resulted in extreme prejudice to
the defendant because defendant did not have an opportunity to examine the software, so
defendants lost a valuable opportunity to test plaintiffs theory that the software worked. 427
F.3d at 945-46; accord Silvestri v. Gen. Motors Corp., 271 F.3d 583, 593 (4th Cir. 2001)
(dismissal for spoliation warranted when the effect of the spoliators conduct was so prejudicial
that it substantially denied the defendant the ability to defend the claim). There, direct
examination of the vehicle[] was critically important to this case, so the lower court erred in
concluding that a simple jury instruction could cure the resulting prejudice to defendant. Id. at
946. Worse than Flury where [s]poliation of the vehicle forced experts to use much less
reliable means of examining the products condition, here, Defendants expert has no evidence
of the software to test, leading to trial by ambush. Id. at 945-46.
Finally, a lesser sanction would not cure the prejudice. As Montgomerys history of
refusing to produce the software shows discovery orders and contempt sanctions will not work;
nothing short of dismissal will be effective.21 Sanctions such as a finding or an adverse inference
21
See Latele Television, C.A. v. Telemundo Commcns Grp., LLC, 2014 WL 5816585, at *10
n.17 (S.D. Fla. Nov. 10, 2014) (Goodman, J.) (noting dismissal would be appropriate when
less-drastic sanctions would not ensure compliance with the courts orders) (citing Navarro v.
Cohan, 856 F.2d 141, 142 (11th Cir. 1988)); Penthouse Intl, Ltd. v. Playboy Enters., Inc., 663
F.2d 371, 388 (2d Cir. 1981) (dismissing trade libel suit as sanction, stating that the court should
17
that the software does not work or does not exist compels dismissal because Montgomery could
not, as a matter of law, carry his burden of proving falsity.22 When, as here, the parties would
incur substantial litigation expenses and the adjudication would consume valuable judicial
resources, only to arrive at the same substantive outcome as [dismissal] will achieve with much
greater efficiency and at substantially lower cost, a court should dismiss. Telectron, 116 F.R.D.
at 135 (dismissing when adverse inference would lead to default judgment at far greater cost).23
Here, the extraordinary nature of plaintiffs actions coupled with extreme prejudice to the
defendant warrants dismissal. Flury, 427 F.3d at 943.24
2.
Under Rule 37(b), the Court should recommend dismissing the action. Fed. R. Civ. P.
37(b)(2)(A)(v). As under the Courts inherent power, Rule 37(b) gives broad discretion to the
view defiance of [an] order . . . against the background of [plaintiffs] prolonged and vexatious
obstruction of discovery [concerning] closely related and highly relevant records).
22
Even if the government could find the software and asserted it was classified and prior
proceedings suggest otherwise (see II.B, supra) the case would have to be dismissed. See, e.g.,
Trulock v. Lee, 66 F. Appx 472, 476-77 (4th Cir. 2003) (per curiam) (affirming dismissal of
libel action brought by former official Mr. Klayman represented because classified information
subject to state secrets privilege was central to proving falsity); Restis v. Am. Coal. Against
Nuclear Iran, Inc., 2015 WL 1344479, at *5-8 (S.D.N.Y. Mar. 23, 2015) (dismissing libel action
on accusations plaintiff violated Iran sanctions where case would disclose state secrets).
23
See also S. New England Tel. Co. v. Global NAPs, Inc., 251 F.R.D. 82, 95 (D. Conn. 2008)
(entering terminating sanctions where any adverse inference sufficient to sanction defendants
and address the harm to [plaintiff] would effectively amount to a directed verdict or the
equivalent of a default judgment), affd, 624 F.3d 123 (2d Cir. 2010); Wm. T. Thompson Co. v.
GNC, 593 F. Supp. 1443, 1456 (C.D. Cal. 1984) (entering default judgment because lesser
sanction of excluding defendants proof would virtually compel directed verdict).
24
Dismissal is clearly the appropriate sanction, but, even if the Court were to dismiss, it should
also enter a finding or adverse inference that the software either does not exist or does not work
that could be referenced in any later summary judgment motion, if, for any reason, Montgomery
objects to the dismissal and it is not sustained, at least prior to summary judgment. See Coquina
Invs. v. TD Bank, N.A., 760 F.3d 1300, 1319 (11th Cir. 2014) (affirming sanction finding facts
established that partys fraud detection was unreasonable and it knew of fraud when, inter alia,
party failed to reasonably search for and produce documents); Boston Boat, 2015 WL 5156561,
at *13 (imposing rebuttable presumption instruction when defendants ripped out carpet and
refurbished boat deck but kept sample of carpet to inspect); Lyondell-Citgo Ref., LP v. Petroleos
de Venezuela, S.A., 2005 WL 1026461, at *4 (S.D.N.Y. May 2, 2005) (adopting adverse
inference against party refusing to produce allegedly classified information under court order).
18
district court to dismiss if it finds willful or bad faith failure to obey a discovery order.
Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993); Boston Boat, 2015 WL
5156561, at *6. Dismissal should not be imposed if lesser sanctions will suffice. Navarro,
856 F.2d at 142. But a default sanction may be proper even when not preceded by the
imposition of lesser sanctions because Rule 37 does not require the vain gesture of first
imposing . . . ineffective lesser sanctions. Malautea, 987 F.2d at 1544.
Indeed, in National Hockey League v. Metropolitan Hockey Club, the Supreme Court
warned lower courts not to show lenity in ordering dismissal sanctions for failure to comply
with a discovery order because Rule 37 sanctions should not only penalize those whose conduct
deserves sanctions, but deter others tempted to engage in similar conduct. 427 U.S. 639, 642-43
(1976) (reversing appellate courts decision not to dismiss as Rule 37(b) sanction for partys
violation of court orders). Accord Watkis v. Payless ShoeSource, Inc., 174 F.R.D. 113 (M.D.
Fla. 1997) (dismissing under Rule 37(b) for violating discovery orders). Thus, this Circuit has
upheld dismissal sanctions, when, as here, the party violates court orders in bad faith.25
When, as here, a party has consistently disobeyed orders, obstructed discovery, delayed
proceedings and made misrepresentations to the court, an extreme sanction is warranted.
Carlucci v. Piper Aircraft Corp., 102 F.R.D. 472, 488 (S.D. Fla. 1984) (dismissing as sanction
for spoliation and violating discovery orders). For example, in Gratton v. Great American
Communications, this Circuit affirmed the sanction of dismissal when plaintiff not only spoliated
cassette tapes in his possession, custody, or control and violated multiple discovery orders, but
like Montgomerys inadequate attempts to obtain the software from the FBI flout[ed] the
district courts order to give a detailed description of his efforts to locate the tapes. 178 F.3d
25
See, e.g., Hashemi v. Campaigner Publns, Inc., 737 F.2d 1538, 1539 (11th Cir. 1984)
(affirming dismissal; the district court retains the discretion to dismiss a complaint where the
partys conduct amounts to flagrant disregard and willful disobedience of the courts discovery
orders) (quotation marks omitted); Griffin v. Alcoa, 564 F.2d 1171, 1172 (5th Cir. 1977) (per
curiam) (the Circuit has approved dismissal as a sanction imposed under Rule 37(d), [where]
plaintiffs failure to comply with discovery has involved either repeated refusals or an indication
of full understanding of discovery obligations coupled with a bad faith refusal to comply).
19
at 1375. Similarly, in Malautea, the Circuit affirmed dismissal sanctions, holding defendants
richly deserved the sanction of a default judgment where, as here, the discovery orders clearly
encompassed the information requested by plaintiffs. 987 F.2d at 1542-43. As in Malautea,
dismissal sanctions are appropriate because, here, the party violated multiple discovery orders
without a legitimate excuse, and thus in bad faith, by concealing and delaying producing
documents subject to the orders. Id. at 1542-44. Thus, the Court should dismiss with prejudice.
C.
The Court Should Award Fees and Costs Against Plaintiff and His Counsel
The Court has broad discretion to award attorneys fees and costs against a party and
attorney as an additional sanction under its inherent power and Rule 37(b). Fed. R. Civ. P.
37(b)(2)(C); Latele, 2014 WL 5816585, at *10 (awarding attorneys fees and costs for failing to
timely produce documents, violation of court orders, and misrepresentations); Preferred Care
Partners Holding Corp. v. Humana, Inc., 2009 WL 982460, at *8 (S.D. Fla. Apr. 9, 2009)
(assess[ing] a monetary sanction of costs and attorneys fees due to partys grossly negligent
discovery conduct).26 Thus, the Court should order Montgomery and his counsel to pay
Defendants attorneys fees and costs for preparing and arguing this sanctions motion.27
IV.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court grant their
motion for sanctions and prepare a report and recommendation to dismiss this action, along with
an order imposing monetary sanctions.
26
The Court may enter sanctions orders rather than a report and recommendation for
discovery failures which do not strike claims, completely preclude defenses or generate
litigation-ending consequences, including monetary sanctions. QBE Ins. Corp. v. Jorda Enters.,
Inc., 280 F.R.D. 694, 694 n.2 (S.D. Fla. 2012) (Goodman, J.).
27
The Court should order Montgomerys counsel to pay the monetary sanction because
Montgomery has represented that he is destitute. Martin v. Automobili Lamborghini Exclusive,
Inc., 307 F.3d 1332, 1337 (11th Cir. 2002) (holding that court must take into consideration the
financial circumstances of the party being sanctioned).
20
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)
laurahandman@dwt.com
Micah J. Ratner (admitted pro hac vice)
micahratner@dwt.com
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Ave., NW, Suite 800
Washington, D.C. 20006
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants
CERTIFICATE OF SERVICE
I certify that on October 28, 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
21
EXHIBIT 1
1.
Please provide the name, address, telephone number, place of employment and
job title of any person who has, claims to have, or whom you believe may have knowledge or
information pertaining to any fact alleged in the Amended Complaint, or any fact underlying the
subject matter of this action.
Objection: This interrogatory is overly broad and unduly burdensome and lends itself to a
narrative response which can be elicited at deposition through oral testimony.
2.
Please state the specific nature and substance of the knowledge that you believe
1
the persons identified in your response to interrogatory 1 may have. See objection to
interrogatory 1.
3.
Please provide the name of each person whom you may use as an expert
witness at trial.
Response: Plaintiff has not chosen experts at this time but reserves the right to do so later.
4.
Please state each item of damage that you claim, and include in your answer: (i)
the claim for relief to which the item of damages relates; (ii) the category into which each item
of damages falls, i.e. general damages, special or consequential damages (such as lost profits),
interest, and any other relevant categories; (iii) the factual basis for each item of damages; and
(iv) an explanation of how you computed each item of damages, including but not limited to
any mathematical formula used.
Response: Objection: This interrogatory is overly broad, unduly burdensome and lends
itself to a narrative response to be obtained at deposition.
6.
Please state your full name (including any alias you have used), present
address, Social Security number, date of birth, and educational and employment background
chronologically.
Response: Objection: This interrogatory is overly broad, unduly burdensome and lends
itself to a narrative response to be obtained at deposition.
7.
Please identify all addresses where you lived since January 1, 1998 and the
part irrelevant. Plaintiff has already provided his current address and other information showing
that he is a Florida citizen and resident of Miami-Dade County, Florida. Any additional
information, if relevant and not unduly burdensome, can be obtained in a narrative response
during his deposition.
8.
software, including but not limited to computer science, computer programming, programming
languages, software development, or software engineering.
Response: Objection: This interrogatory calls for a narrative response more suited for
deposition and is overly broad and in large part irrelevant.
9.
Please identify all persons with knowledge of your or your companies software
or the location of your software, and describe the substance of each persons knowledge.
Response: Objection: This interrogatory is unduly burdensome, overly broad, largely
irrelevant and calls for a narrative response more suitable for deposition.
10.
independent tests of Plaintiff Montgomerys software that confirmed its effectiveness and
reliability referred to in paragraph 48 of the Amended Complaint and describe the substance of
each persons knowledge.
Response: Objection: This interrogatory is overly broad, burdensome and in any event calls
for a narrative response more suitable for deposition.
11.
Please identify any evidence that the Government has continued to use
constitutes evidence.
12.
Please identify any evidence of your or your companies multiple and ongoing
business dealings within the state of Florida referred to in paragraph 13 of the Amended
Complaint and identify all persons with knowledge of such business or business opportunities.
Response: Objection: This interrogatory is vague and ambiguous and calls for a legal
conclusion as to what constitutes evidence, and is largely irrelevant and unduly burdensome.
To the extent that it calls for relevant information, the response is more suitable for a narrative
response at deposition.
13.
sought pertaining to your software or any such business you obtained from any person in
Florida, Washington, California, Nevada, the District of Columbia, Maryland, or Virginia and
identify all persons with knowledge of such business or business opportunities
Response: Objection: This interrogatory is vague and ambiguous as it refers to evidence,
which is not defined and in any event calls for a legal conclusion. This interrogatory calls for a
narrative response to the extent that properly defined information is requested, and this
narrative response is more suitable for deposition.
14.
Please identify any evidence that you or your companies lost business
Please identify all persons (except for your attorneys) who communicated with
you about the Book and state the substance of those communications.
Response: Objection: Subject to work product. In addition, the interrogatory is indefinite as
4
to time and is overly broad and ambiguous, and largely irrelevant. In addition, this interrogatory
is more suited for a narrative response at deposition.
16.
Please identify the companies in which you are or were an owner, investor,
Please identify any evidence that you or your immediate family has been
subject to a Fatwah or threat by any entity, individual, or organization, including but not
limited to: (i) the substance of any such Fatwah or threats; (ii) whether you reported any
Fatwah or threats to law enforcement; and (iii) what steps you or law enforcement took to
protect yourself or your immediate family from any such Fatwah or threats.
Response: Objection: This interrogatory constitutes a multiple compound question, is
overly broad, and any response is more suitable for a narrative response at deposition.
18.
Please identify any litigation, including but not limited to filing for bankruptcy,
in which you have been involved as a party or witness, other than this action, including but not
limited to: (i) the parties; (ii) the jurisdiction in which the case was brought; (iii) the date the
case was filed; (iv) the Courts case number; (v) declarations and affidavits you signed, and
testimony in any deposition, hearing, or trial that you gave under oath; (vi) the disposition of
the case; (vii) whether you were subject to any sanction or contempt in the case; and (viii)
whether and which party paid any settlement or damages, and, if so, the amount.
Objection: This interrogatory is a compound question and is overly broad, vague and
ambiguous, and in any event to the extent that any requested information is relevant it is more
5
Please state whether you were the target of a criminal investigation, arrested,
Please identify the addresses where your wife (and if applicable where any
minor child) lived from January 1, 2014 to the present, giving the inclusive dates applicable to
each such address.
Response: Objection: This interrogatory is calculated to harass Plaintiff and his family and
is irrelevant and not calculated to lead to relevant evidence. It is also ill-defined and vague and
ambiguous.
21.
Please identify the addresses your bank and credit card issuers had on file for
you from January 1, 2014 to the present, giving the inclusive dates applicable to each such
address.
Response: Objection: Same objection as interrogatory 20, above.
22.
Please identify your doctors and their addresses from January 1, 2014 to the
present.
Response: Objection: This interrogatory is overly broad, burdensome, vague and
ambiguous and largely irrelevant. In any event, if the interrogatory is redrafted and narrowed, a
narrative response is more suitable for deposition.
23.
Please identify any accountant you retained from January 1, 1998 to the present.
6
Response: Objection: This interrogatory is overly broad, vague and ambiguous, ill-defined
and largely irrelevant.
REQUEST FOR PRODUCTION OF DOCUMENTS
General Objection: These document requests, with subparts, comprise of hundreds of requests,
are unduly burdensome, oppressive, and harassing and are therefore void in its entirety.
1.
Please produce all documents and electronically stored information you did not
produce in your initial disclosures served upon Defendants on April 24 and 27: (i) that you may
use to support your claims, unless the use would be solely for impeachment; and (ii) that serve
as a basis for your computation of each category of damages you claim, including but not
limited to materials bearing on the nature and extent of injuries suffered, unless privileged or
protected from disclosure.
Response: Objection: This request is overly broad. However, any relevant documents will
be made available for inspection and copying at a mutually agreed date, time and place.
3.
to individuals with knowledge or information about facts in the Amended Complaint or any
fact underlying the subject matter of this action identified in response to interrogatories 1-2.
Objection: This request is vague and ambiguous and overly broad. Nevertheless, any relevant
and non-privileged documents will be made available for inspection and copying at a mutually
agreed date, time and place.
7
4.
to each person whom you may use as an expert witness at trial identified in response to
interrogatories 3-4, including but not limited to: (i) all curriculum vitae or resumes; (ii) all
publications, reports, presentations, or other documents listed on the curriculum vitae or
resumes; (iii) all documents reviewed or considered in connection with his or her work on this
action; (iv) all documents on which he or she relied in forming his or her opinions in connection
with this action; (v) all reports, declarations, affidavits, notes, and correspondence made by or
prepared for the expert in connection with this lawsuit, including but not limited to all drafts of
such documents and all correspondence between or including the expert and you or your
attorneys; and (vi) all expert reports and transcripts of depositions, hearings, and trial testimony
given or written by the expert within the previous four years in any action.
N/A at this time.
5.
to damages you or your companies allegedly sustained from conduct attributable to Defendants
identified in response to interrogatory 5 above.
Objection: See objection to interrogatory 5. Notwithstanding this, any relevant and nonprivileged documents will be made available for inspection and copying at a mutually
convenient date, time and place.
6.
any training, certification, or degree you obtained pertaining to software, including but not
limited to computer science, computer programming, programming languages, software
development, or software engineering identified in response to interrogatory 8 above.
Objection: See objection to interrogatory 8. This request is overly broad and vague and
ambiguous. Not withstanding, this any relevant and non-privileged documents will be produced
8
to all persons with knowledge of your or your companies software or the location of your
software identified in response to interrogatory 9 above.
Objection: See objection to interrogatory 9. Notwithstanding this, any non-privileged
relevant documents will be produced for inspection and copying at a mutually agreed date, time
and place.
8.
Plaintiff Montgomerys software or your companies software that confirmed its effectiveness
and reliability referred to in paragraph 48 of the Amended Complaint and identified in
response to interrogatory 10 above.
Objection: Same objection as interrogatory 10. Notwithstanding this, any relevant, nonprivileged documents will be made available for inspection and copying at a mutually
convenient date, time and place.
10.
to your allegation in paragraph 49 of the Amended Complaint that the Government has
continued to use Plaintiff Montgomerys software and technology identified in response to
interrogatory 11 above.
Objection: Overly broad, vague. These documents, if non privileged, are not in the
custody, possession or control of Plaintiff. Any such non-privileged relevant documents
that are will be produced at a mutually convenient date, time and place.
11.
to any business opportunities you or your companies sought pertaining to your software or any
such business you obtained from any person in Florida, Washington, California, Nevada, the
District of Columbia, Maryland, or Virginia identified in response to interrogatory 13 above.
Response: See objection to interrogatory 13. Notwithstanding this response, any relevant
non-privileged documents will be produced at a mutually convenient date, time and place.
13.
that you or your companies lost business opportunities pertaining to your software as a result of
publication of the Book identified in response to interrogatory 14 above.
Response: See objection to interrogatory 14. Notwithstanding this, any relevant nonprivileged documents will be produced at a mutually convenient date, time and place.
14.
to communications between you and all persons who communicated with you about the Book
identified in response to interrogatory 15 above.
Response: See objection to interrogatory 15. Notwithstanding this, any relevant nonprivileged documents will be produced at a mutually convenient date, time and place.
15.
sanctions order against you, contempt order against you, and any order disposing of any
litigation (including but not limited to bankruptcy case) in which you have been involved as a
party or witness, other than this action, identified in response to interrogatory 18 above.
Response: See objection to interrogatory 18. This request is wholly irrelevant.
18.
to your arrest, conviction, or plea of guilty or nolo contendere to any felony or misdemeanor
identified in response to interrogatory 19 above.
Response: See objection to interrogatory 19. This request is wholly irrelevant.
19.
Please produce all declarations and affidavits you signed, and testimony in any
deposition, hearing, grand jury proceeding, or trial that you gave under oath identified in
response to interrogatories 18 and 19 above.
Response: See objections to interrogatories 18 and 19. In addition, this request is
11
to the addresses where your wife (and if applicable where any minor child) lived from
January 1, 2014 to the present identified in response to interrogatory 20 above.
Response: See objection to interrogatory 20. This request is also harassing and irrelevant.
21.
to the addresses your bank and credit card issuer had on file for you from January 1, 2014 to
the present identified in response to interrogatory 21 above.
Response: See objection to interrogatory 21.This request is overly broad, harassing and
irrelevant.
22.
to the addresses of your doctors from January 1, 2014 to the present identified in response to
interrogatory 22 above.
Response: Objection on the grounds set forth in response to interrogatory 22. This request
is overly broad, harassing and largely irrelevant.
23.
to any accountant you retained from January 1, 1998 to the present identified in response to
interrogatory 23 above.
Response: See objection to interrogatory 23. This request is overly broad, ill-defined and
vague and ambiguous and largely irrelevant and is intended mainly to harass.
24.
to patents that you or your companies sought or obtained pertaining to your software (Am.
Compl., Ex. C, (7)(h)), including but not limited to any patent application that was rejected.
Response: Defendants can easily obtain any such documents from the Patent and
12
to copyright registration you or your companies sought or obtained pertaining to your software
(Am. Compl., Ex. C, (7)(u)), including but not limited to any copyright registration
application that was rejected.
Response: Objection: Vague and ambiguous, relevancy, burdensome and oppressive and
Defendants can easily obtain these documents from copyright registration authorities.
26.
to [t]he team on which [you] worked [that] had contracts directly with the intelligence
agencies at the military bases in Florida and the video showing the work (Am. Compl., Ex.
C, 28 (emphasis removed)).
Response: Objection: Much of this documentation is not in Plaintiffs custody, possession
or control. Notwithstanding this, any relevant non-privileged documents will be produced at a
mutually convenient date, time and place.
27.
to the following statement in the Amended Complaint, Exhibit C, paragraph 28: The
contracting officers are out of those military bases, many of which are classified. I met and
worked with CIA officials in Florida at various military bases. However, I cannot identify here
the exact units stationed at those bases, which is classified information.
Objection: The request is overly broad, largely irrelevant and the documentation is not
largely in Plaintiffs possession, custody or control.
28.
Please produce a copy of the software loaded onto U.S. Special Operations
Command computers arising from the February 14, 2004 Order for Supplies or Services
referred to in the Amended Complaint, Exhibit C, paragraph 29 and attached to the Amended
Complaint as Exhibit 19 to Exhibit C.
Response: Objection: Any such additional relevant non-privileged documents are not in
Plaintiffs custody, possession or control.
30.
to the following statement in the Amended Complaint, Exhibit C, paragraph 30: Most of the
payments for our work, the work I did for eTreppid and later BLXWARE, came out of the CIA
offices in Florida and SOCOM, the U.S. Special Operations Command of the U.S. military at
Mac[D]ill Air Force Base, Florida.
Response: Objection: Any such relevant non-privileged documents are not in Plaintiffs
custody, possession or control.
31.
to demonstrations of your object detection software for the U.S. government referred to in the
Amended Complaint, paragraphs 121-24.
Response: Objection: Any such relevant non-privileged documents are not in Plaintiffs
possession, custody or control.
32.
to videos feeds you or your companies obtained from Predator Drones stationed at Nellis Air
14
pertaining to your health issues referred to in paragraph 13 of the Amended Complaint, or in the
alternative, sign releases Defendants will provide to you complying with the Health Insurance
Portability and Accountability Act (HIPAA) and applicable state law that authorize
Defendants to obtain your medical, psychiatric, psychological, and prescription records.
Response: Objection: Overly broad, vague and ambiguous and irrelevant.
34.
strengths and weaknesses referred to in the January 6, 2015 letter attached to the Amended
Complaint as Exhibit 10 to Exhibit C.
Response: Objection: Other than what has already been produced, such documentation is
not in Plaintiffs custody, possession or control.
35.
communications pertaining to your software between you or your companies and the U.S.
government, including but not limited to: (i) data your software generated pertaining to Al
Jazeera television communicated to the U.S. government; (ii) data your software generated
pertaining to object detection communicated to the U.S. government; (iii) the hidden data [your
software] uncovered you or your companies communicated to the U.S. government (Am.
15
communications pertaining to your software between you and White House officials in the
Office of the President or Office of the Vice President.
Response: Any such relevant non-privileged documents will be produced at a mutally
convenient date, time and place. Vague and ambiguous and relevancy objections as well.
39.
to the September 28, 1998 contribution agreement between you and Warren Trepp (Am.
Compl., Ex. C, (7)(u)), and any communications between you and Mr. Trepp.
Response: Same objection as request 42, above.
44.
to any partnership or business between you and Steve Crisman, including but not limited to
software produced, and any communications between you and Mr. Crisman.
Response: Objection: Overly broad, vague and ambiguous and relevancy.
45.
to the investigation by the Federal Bureau of Investigation into you or your software.
Response: Objection: Calls for a legal conclusion that there was an investigation. Any
such non-privileged, relevant information will be produced at a mutually convenient date, time
and place. This documentation, if it exists, is in the possession, custody and control of the FBI.
46.
the investigation by the U.S. Air Force Office of Special Investigations into you or your
software.
Response: Objection: Without admitting that there was any such investigation, which is illdefined and not established, objection on relevancy, overly broad, vague and ambiguous.
17
communications pertaining to your software between you and the Department of Justice.
Response: Objection: Any such documentation is privileged and work product assuming it
exists. Overly broad, vague and ambiguous and relevancy.
48.
to your social media account pages pertaining to the allegations of the Amended Complaint or
any fact underlying the subject matter of this action, including but not limited to Twitter,
Facebook, LinkedIn, and Google Plus.
Response: Vague and ambiguous, relevancy and harassing and overly broad.
49.
your communications with any person in which you sought a correction, retraction, or
threatened a civil action over a publication, article, or other news report about you.
Response: Objection: Overly broad, vague and ambiguous, and relevancy.
50.
your communications with any person identified in your initial disclosures served upon
Defendants on April 24 and 27.
Response: Objection: Overly broad, vague and ambiguous and relevancy.
51.
your communications with any person identified in Defendants initial disclosures served upon
you on April 24.
Response: Overly broad, burdensome, oppressive, harassing and vague and ambiguous.
52.
any income, salary, and benefits and the source of that income, salary, and benefits you received
from January 1, 1998 through the present, including but not limited to federal and state income
18
any payments pertaining to your software from the U.S. government to you or your companies.
Response: Objection: Overly broad, vague, ambiguous, and not relevant.
54.
Please produce copies of all your drivers licenses from January 1, 1998 to the
present.
Response: None and Objection: Overly broad, vague and ambiguous and relevancy.
55.
Please produce a copy of any lease you entered into to rent any premises in
Florida.
Response: Objection: Any such non-privileged documents will be produced at a mutually
convenient date, time and place.
56.
Please produce any resume you created or maintained from January 1, 1998 to
the present.
Response: Any such relevant, non-privileged documents will be produced at a mutually
convenient date, time and place.
57.
Please produce all voter registration forms you signed from January 1, 1998 to
the present (to the extent not already produced in your initial disclosures).
Response: Already produced. Any additional non-privileged relevant documents will be
produced at a mutually convenient date time and place.
19
Respectfully Submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
FL Bar No. 246220
7050 W Palmetto Park Rd.
Suite 15-287
Boca Raton, FL 33433
20
21
EXHIBIT 2
EXHIBIT 3
1 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 2 of
2
Case No. 15-20782-CIV-MARRA
3
DENNIS L. MONTGOMERY,
4
5
6
7
8
)
)
PLAINTIFF,
)
)
-v)
)
JAMES RISEN, ET AL.,
)
)
DEFENDANTS.
)
)
_____________________________)
)
Miami, Florida
October 16, 2015
9
10
11
12
13
14
Appearances:
15
16
Reporter
(561)514-3768
17
18
19
20
21
22
23
24
25
2 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 3 of
* * * * *
2
3
4
5
6
7
8
9
10
-and(Present in Court)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
* * * * *
3 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 4 of
2
3
Calling case
THE COURT:
9
10
now.
11
12
13
14
15
MR. KLAYMAN:
Larry
Klayman.
16
17
THE COURT:
18
All right.
Good.
19
20
MR. KLAYMAN:
21
THE COURT:
22
23
24
25
4 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 5 of
Hollywood?
All right.
MR. KLAYMAN:
Honor.
THE COURT:
MR. KLAYMAN:
THE COURT:
11
THE COURT:
12
MR. KLAYMAN:
13
THE COURT:
16
THE COURT:
you.
18
MR. KLAYMAN:
I don't know.
20
22
MR. KLAYMAN:
21
15
19
Yeah.
Oh.
MR. KLAYMAN:
17
Oh, really?
10
14
I did give an
THE COURT:
Maybe I --
wife.
So, yeah, I guess they do these interviews and they
23
24
have a need.
25
MR. KLAYMAN:
5 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 6 of
THE COURT:
Okay.
MS. HANDMAN:
My gosh.
Good.
6
7
THE COURT:
All right.
lately?
MS. HANDMAN:
THE COURT:
10
MR. BOHRER:
11
THE COURT:
Very well.
12
All right.
13
No.
All right.
14
15
attention.
16
MS. HANDMAN:
17
18
19
20
21
22
23
24
25
6 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 7 of
9
10
11
12
13
14
15
Government was not aware of this case and the pending document
16
17
importantly, he said:
18
19
20
21
on August 19th, just two days before the hearing before Your
22
23
24
25
throughout.
7 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 8 of
One was a
present.
the software.
10
Three, the
11
12
13
14
15
16
17
18
19
20
FBI.
21
22
23
24
25
that would be after our meet and confer -- to which the FBI
8 53
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 9 of
and clarification."
the meet and confer on October 7th, for this exchange, and
We asked again
10
11
12
13
14
15
of August 22.
16
By giving the FBI this one and only copy of his own
17
software and not keeping a copy which had been the subject of
18
19
20
21
22
23
24
25
9 of
Case 1:15-cv-20782-JEM Document 166-3 Entered on FLSD Docket 10/28/2015 Page 10
53
1
approaching.
10
with the FBI, the August 1 e-mail that are both referenced in
11
12
13
14
15
already done so, by Monday, he provide the FBI with all the
16
17
18
been done.
19
20
21
22
23
24
25
prejudice.
make a finding that the software either did not exist, or did
10
11
12
13
requires.
14
THE COURT:
15
Mr. Klayman?
16
MR. KLAYMAN:
17
Thank you.
18
19
20
it existed.
21
22
23
24
25
Because we said if it
willy-nilly.
difficulty.
Mr. Montgomery has communicated with the FBI and has given it
10
11
12
13
14
15
16
17
18
that.
19
20
21
22
23
24
Mr. Baker's letter, he's a very honest man, and I have the
25
highest regard for him, but he was not privy at the meeting at
was.
fact, we had told the FBI that there was a civil matter, and
point in time.
10
11
said.
12
13
14
important.
15
in the news these days that the FBI has some very significant
16
17
18
The FBI is
And, you
19
20
21
which they're moving with all due speed, and we are proceeding
22
in that regard.
23
So this is a matter
24
25
But what we're saying is, and we're asking Judge Martinez to
take a look at it, and I hope that you can look at it, too, is
that, you know, it's ironic that they're making this issue of
10
11
12
record.
13
14
which was meant to sell the book but was obviously false given
15
his testimony.
16
17
18
19
20
now confirmed that this is true, that they were trying -- they
21
22
23
24
25
review any such software -- which they could have done from
the start -- they didn't even give us anything more than the
Honor didn't -- not have all this information at the time that
Your
10
11
12
over now, and the FBI's looking for it, and it's classified,
13
14
15
16
17
18
19
20
21
To
22
23
24
25
this country.
It's moving --
fact that he went back into the hospital after another stroke.
yet.
10
11
I know they're
12
13
14
15
16
17
18
19
20
21
22
THE COURT:
23
24
25
2
3
4
5
MR. KLAYMAN:
Okay.
determination.
10
That's
11
Mr. Montgomery has had with the FBI since, pursuant to your
12
13
14
15
16
17
18
taken lightly.
19
That could
And
20
21
22
23
that.
24
THE COURT:
25
MR. KLAYMAN:
I mean, we have
the basis that Mr. Risen did not have access to the software,
Congressional testimony.
10
expert only by giving us his name on the last day, and could
11
12
13
14
the FBI and the Department of Justice, to try to get this case
15
dismissed.
16
17
18
19
when he testified.
20
21
22
magistrate judge and/or the judge to rule that the case should
23
24
25
I predicted this to my
colleagues from day one, that Defendants would try this, okay,
THE COURT:
10
allegation.
11
12
13
not.
14
15
16
seen it, he had never had access to it, he had never spoken to
17
18
19
20
21
He had never
22
and, quite frankly, you didn't make much headway then, and
23
24
25
both?
MR. KLAYMAN:
They were
forwarded to the FBI, and what I also argued was, Your Honor,
been ill.
And --
10
11
12
13
security.
14
15
THE COURT:
He's an informant.
16
the one that you said Mr. Montgomery sent to the FBI in order
17
18
19
20
21
22
MR. KLAYMAN:
We forwarded
23
not classified.
24
25
THE COURT:
to turn over.
simply speculation.
10
11
12
reviewed it.
13
14
MR. KLAYMAN:
15
You've
16
17
18
19
20
not.
21
THE COURT:
22
MR. KLAYMAN:
23
in that regard.
Okay.
I was never
I was
So --
So --
24
THE COURT:
25
between Mr. Montgomery and the Government and the FBI, and I
5
6
7
He says:
10
11
12
13
14
15
16
17
He
18
19
were you, Your Honor, and was put in the public records.
20
21
22
23
24
25
documents that you request are covered by the Privacy Act, you
"I can tell you that the FBI sent Mr. Klayman an
10
documents you seek," which are the ones that include those
11
12
13
14
15
16
17
18
says:
19
20
21
litigation."
22
23
24
by putting the alleged software, the one and only copy of the
25
1
2
Government.
And I would remind the Court that back at the
10
11
12
13
14
15
16
17
18
19
20
21
and ultimately the sheriff's office had two former NSA experts
22
23
24
25
10
11
12
13
14
15
16
17
the two NSA experts, Tom Drake and Kirk Weebie, are clients of
18
19
20
21
And so he can
22
23
et cetera, this has been a story that's been told for a long
24
time.
25
We're asking
problem.
10
11
awarded.
12
MR. KLAYMAN:
13
THE COURT:
14
MS. HANDMAN:
15
THE COURT:
16
MS. HANDMAN:
17
Your Honor --
Ted?
Ted.
18
19
contacted him.
20
MR. KLAYMAN:
21
THE COURT:
22
MR. KLAYMAN:
23
24
25
Your Honor.
Yes, sir.
May I respond to that?
Unfortunately, Ms. Handman
the facts.
And
things.
10
11
request.
12
THE COURT:
13
MR. KLAYMAN:
14
15
Yes, I do.
Okay.
16
THE COURT:
17
18
19
20
Mr. Klayman or Mr. Montgomery from doing it, and "I, on behalf
21
22
That's --
23
MR. KLAYMAN:
24
THE COURT:
25
be saying.
MR. KLAYMAN:
Okay.
stuff, and . . .
THE COURT:
MR. KLAYMAN:
THE COURT:
8
9
And I have an
10
11
12
MR. KLAYMAN:
13
THE COURT:
14
15
MS. HANDMAN:
16
THE COURT:
17
MR. KLAYMAN:
Mr. Schwartz.
Okay.
I don't have any such e-mail.
18
19
that effect.
20
21
22
23
24
25
Not
I
I've had
contest --
THE COURT:
Schwartz?
No, no.
10
11
12
won't.
13
14
THE COURT:
I brought it
All right.
issue.
15
16
17
18
19
20
21
e-mail there?
22
MS. HANDMAN:
23
THE COURT:
24
MS. HANDMAN:
25
THE COURT:
Yes, I do.
MS. HANDMAN:
Okay.
10
"I can tell you that the FBI sent Mr. Klayman an
11
12
13
14
15
16
17
18
19
in paragraph 5:
20
21
22
23
24
25
THE COURT:
All right.
file your October 5th, 2015, e-mail to Mr. Schwartz, and then
10
11
12
all of the correspondence between you and the FBI, you and
13
Ms. Curtis, Mr. Montgomery and the FBI, Mr. Montgomery and
14
15
16
17
18
19
20
21
22
23
24
25
to make sure that he sends to the FBI the most detailed, most
10
11
12
13
14
lawsuit from among the massive 51.6 million files turned over
15
16
17
18
19
20
21
Copies of
22
23
24
25
that software October 26th, I'm not naive, and I think there's
order.
sanctions.
8
9
You're seeking,
10
11
12
13
14
15
16
17
requiring it.
18
You're
19
20
or two.
21
22
23
24
25
project now.
that project underway, because the sooner that you get that to
10
number one, this phone call, and, number two, your motion and
11
memorandum.
12
13
14
Because
15
16
17
18
19
rulings.
20
21
do you have any questions about the specific rulings and the
22
23
24
MR. KLAYMAN:
25
security reasons and also for the health, safety and welfare
10
11
for years.
12
13
14
15
THE COURT:
So I would
16
17
Ms. Handman and Mr. Schwartz, some e-mail from Mr. Montgomery
18
19
20
21
22
23
24
25
MR. KLAYMAN:
that regard.
THE COURT:
Doesn't strike
MR. KLAYMAN:
Okay.
8
9
Your
10
11
12
13
14
15
16
17
client.
18
19
20
21
22
23
24
25
client.
innocuous.
10
11
12
13
14
15
16
17
under seal in compliance with the local rule, which means you
18
19
20
21
MR. KLAYMAN:
22
THE COURT:
23
MR. KLAYMAN:
24
THE COURT:
25
I will do that.
So
10
11
12
13
14
15
16
17
18
19
seal.
20
21
22
23
them.
24
25
And if it is well
filing, and at times not, and then the documents are unsealed.
5
6
10
11
12
13
14
15
16
17
18
19
20
21
22
guidance.
23
So --
24
MS. HANDMAN:
25
assume --
I mean,
THE COURT:
10
Maybe he'll review the documents and say, you know, on second
11
12
13
possibility.
14
So that's always a
15
file a motion.
16
17
18
19
20
21
22
23
24
25
And
filing.
MR. KLAYMAN:
MS. HANDMAN:
when things get -- you know, a motion is made under seal, the
10
11
see it.
12
THE COURT:
13
MS. HANDMAN:
14
I do.
15
16
17
18
19
able to see it, and, yes, we're bound not to disclose it while
20
21
22
23
24
25
THE COURT:
on the circumstances.
It all depends
it will be me.
10
11
seal, and the opposing party will not get to see it.
12
13
14
15
So in this particular --
16
MS. HANDMAN:
17
18
19
20
to that, as well.
21
22
yes.
23
We have a
24
25
security clearance.
THE COURT:
10
11
12
13
MR. KLAYMAN:
Honor.
14
15
16
see it first.
17
18
19
20
21
22
23
24
25
him.
on my carpet.
Okay.
THE COURT:
6
7
Okay.
10
MS. HANDMAN:
11
MR. KLAYMAN:
12
13
14
15
THE COURT:
16
17
is about to end.
18
19
20
21
22
23
24
25
You
You'll serve
2
3
submission is possible.
10
11
12
and the mere fact that you or Mr. Montgomery would prefer that
13
14
15
16
under-seal filing.
17
18
19
20
21
Take care.
By, now.
22
MR. KLAYMAN:
23
MS. HANDMAN:
24
25
(Proceedings concluded.)
* * * * *
* * * * *
I N D E X
Oral Argument
* * * * *
E X H I B I T S
(None.)
* * * * *
CERTIFICATE
9
10
11
12
13
above-entitled matter.
14
15
16
17
18
19
20
21
22
23
24
25
/s/Stephen W. Franklin
_____________________________
Stephen W. Franklin, RMR, CRR
46
$
$25 [1] 23/9
$25 million [1] 23/9
$250,000 [1] 23/20
$2500 [1] 23/8
$2500-a-day [1] 23/8
/
/s/Stephen [1] 45/16
1
10:55 a.m [1] 28/19
12 [3] 29/17 37/2 37/5
12th [3] 21/16 22/12
30/18
13th [1] 23/23
15-20782-CIV-MARRA
[1] 1/2
15-20782-CIVIL-MART
INEZ [1] 3/3
16 [1] 1/8
1621 [1] 29/5
17 [1] 10/10
1919 [1] 2/6
1990s [1] 42/21
19th [1] 6/21
1st [2] 8/1 30/19
4
45 [1] 24/2
47 [1] 10/20
49 [1] 23/20
4th [1] 10/11
5
51.6 million [3] 6/23
31/5 31/14
514-3768 [1] 1/16
552 [1] 29/7
561 [1] 1/16
5:30 [1] 43/16
5th [2] 28/18 30/3
6
600 million [4] 6/23
10/21 12/18 31/5
6th [2] 28/19 30/4
7
701 [2] 1/17 2/9
7th [1] 8/8
8
800 [1] 2/7
8th [3] 6/12 10/24 21/8
32/24
advised [4] 7/24 8/9
9/12 10/23
advising [2] 5/25 6/1
affidavit [2] 12/10 20/22
affidavits [1] 12/3
afield [1] 43/6
after [3] 7/25 15/5 36/8
afternoon [4] 3/5 16/2
33/23 43/16
again [6] 5/17 8/7 8/9
15/11 25/13 28/11
agents [1] 27/23
ago [2] 15/22 34/12
agree [2] 37/19 38/3
agreed [2] 12/8 21/12
agreement [9] 9/9 21/2
21/6 21/9 21/9 21/13
22/11 29/17 30/18
agrees [1] 22/18
ahead [1] 34/25
al [3] 1/6 3/3 24/3
allegation [1] 18/10
alleged [3] 7/3 22/24
22/25
allow [2] 15/15 15/16
allowed [3] 14/7 26/5
42/24
along [2] 26/5 40/1
already [7] 9/15 17/7
18/3 18/6 20/7 31/7 44/5
also [11] 9/14 11/4 19/7
21/17 22/1 24/14 29/6
34/6 35/4 35/18 42/10
alternatives [1] 44/6
always [1] 39/12
am [1] 42/6
ambush [1] 3/23
among [4] 21/1 24/1
24/2 31/14
amongst [1] 19/2
amount [4] 7/1 19/2
30/23 31/4
amounting [1] 6/23
and/or [2] 17/22 32/3
another [3] 15/5 19/9
23/13
answer [2] 30/21 31/12
any [38]
anybody [1] 18/17
anything [8] 3/9 12/7
14/1 17/17 20/17 20/19
27/18 42/1
anyway [1] 17/24
aol.com [1] 1/18
apparently [1] 4/2
appearances [2] 1/14
3/11
applying [1] 41/21
appreciate [1] 18/4
approaching [1] 9/2
appropriate [3] 37/20
41/13 43/23
approximately [1] 23/20
argued [1] 19/7
arguing [1] 41/4
B
back [5] 4/6 6/13 15/5
23/2 43/1
C
called [2] 12/16 23/15
Calling [1] 3/2
came [2] 13/10 15/14
camera [3] 40/13 40/14
41/8
can't [9] 16/17 25/5 25/6
25/9 26/10 26/14 26/18
28/1 31/12
care [1] 44/21
carpet [1] 43/3
47
10/21
documents [39]
does [7] 11/1 20/13
20/14 26/2 35/24 39/14
43/12
doesn't [9] 18/11 18/18
18/19 34/19 35/25 36/25
40/10 40/22 41/25
dog [5] 4/10 4/11 4/14
4/19 4/20
doing [2] 26/20 35/10
DOJ [1] 24/14
DOJ's [2] 22/1 29/5
don't [30]
done [3] 9/15 9/18 13/25
down [3] 19/1 19/17
34/1
drafted [1] 33/5
drafting [1] 33/3
Drake [1] 24/17
Drake's [1] 24/6
drastic [1] 32/22
draw [1] 10/8
drive [2] 7/6 24/8
drives [11] 6/22 10/21
16/13 21/11 23/20 23/22
24/2 24/12 24/16 26/2
30/15
due [4] 9/24 12/21 13/1
15/7
dump [2] 8/20 22/25
dunk [1] 38/2
during [1] 42/23
E
e-file [1] 37/13
e-mail [33]
e-mails [6] 19/18 30/19
31/8 34/16 34/20 37/3
earlier [4] 18/24 30/6
35/3 35/7
early [1] 13/8
effect [2] 6/2 27/19
effort [5] 11/9 23/13
26/4 30/21 31/8
either [5] 5/6 10/7 31/17
32/22 37/12
electronic [1] 30/23
electronically [1] 19/2
else [3] 5/3 30/9 38/14
embarrassing [1] 44/14
enable [1] 25/2
end [2] 43/17 43/17
enforcement [1] 27/22
engaged [1] 8/22
entire [4] 6/3 17/5 26/6
32/15
entitled [1] 45/13
ESI [1] 30/15
ESQ [4] 2/2 2/5 2/5 2/8
et [4] 1/6 3/3 24/23 29/5
et cetera [1] 24/23
even [16]
event [2] 18/21 38/18
everybody [4] 3/8 38/19
44/18 44/20
everyone [1] 5/12
48
19/14
information [42]
information's [1] 15/25
initial [2] 13/8 16/8
initially [1] 14/10
innocuous [3] 36/5 36/9
44/11
inquiry [1] 26/6
inside [1] 13/13
instead [3] 9/25 24/10
41/7
instructions [5] 7/4
19/17 20/10 31/2 31/10
interest [2] 43/10 43/11
interests [1] 14/15
internal [1] 14/23
intervene [1] 22/16
interview [1] 4/6
interviewed [2] 3/21
3/24
interviews [2] 3/23 4/22
intimidate [1] 36/3
H
intimidated [1] 42/23
hand [4] 12/2 37/12
introduced [1] 23/23
39/17 41/12
investigation [8] 11/11
hand-delivered [1]
11/15 11/19 14/17 14/24
39/17
16/14 23/15 23/17
Handman [26]
investigatory [1] 11/21
Handman's [1] 35/24
involved [1] 11/22
Hang [1] 20/24
ironic [1] 13/5
happen [1] 13/7
irretrievable [1] 25/8
happening [1] 44/19
issue [15] 6/19 13/5
happy [4] 5/12 5/15
17/11 17/20 24/16 25/25
10/11 27/10
28/14 30/23 31/3 31/13
I
hard [13] 6/22 10/20
31/22 32/14 37/20 37/22
16/13 23/20 23/22 24/2 I'd [2] 27/10 42/15
40/15
24/8 24/12 24/16 26/2
I'll [9] 20/22 33/8 33/17 issued [1] 21/4
F
36/12 36/16 37/15 37/20 issuing [2] 32/21 33/17
30/15 36/13 38/12
face [1] 36/4
hardly [1] 24/20
37/22 41/13
it's [33]
fact [19]
Harold [2] 35/5 42/20 I'm [21]
items [1] 21/13
facts [1] 26/1
hasn't [2] 15/8 42/1
I've [8] 15/25 18/5 19/18 itself [4] 8/12 36/8 39/22
failure [1] 5/17
haven't [5] 3/9 18/5 27/2 27/3 27/22 34/15 42/18 39/24
fair [1] 42/14
34/1 38/10
44/5
fairly [1] 36/4
J
Ickes [3] 35/5 35/9
having [2] 11/7 35/8
faith [3] 14/22 36/14
he'll [3] 39/10 39/14
42/20
JAMES [3] 1/6 12/4
37/8
39/15
identifiers [1] 7/8
12/4
false [1] 13/14
he's [11] 11/24 14/19
identify [1] 9/16
Jazeera [1] 24/3
falsity [1] 18/9
G
19/8 19/14 21/21 25/1
ill [1] 19/9
jerk [2] 38/9 38/11
far [4] 34/3 34/15 43/5
gain [1] 24/11
25/4 25/6 25/17 34/10
immunity [2] 14/20
Jimmy [2] 3/19 3/22
44/9
garden [1] 32/12
41/24
21/12
JONATHAN [2] 1/11
fast [1] 9/1
gave [6] 6/20 19/1 20/10 heads [1] 17/16
important [4] 6/3 12/14 3/4
FBI [82]
22/25 23/20 26/2
headway [2] 18/22
14/7 20/4
judge [13] 1/12 13/3
FBI's [5] 6/12 7/23 9/12
gee [1] 31/12
18/23
importantly [2] 6/17
15/10 15/25 17/22 17/22
14/12 16/14
general [4] 6/12 7/23
health [1] 34/6
33/1
23/24 24/13 30/8 38/24
federal [3] 14/2 23/24
21/21 44/17
hear [2] 5/15 35/20
impose [1] 10/3
40/8 41/8 42/24
24/19
gentleman [1] 21/20
heard [3] 3/6 15/22
impossible [1] 8/21
judgment [2] 23/9 23/11
fellow [3] 3/21 3/24 36/7
gets [1] 41/14
34/15
in-camera [3] 40/13
Judicial [1] 35/9
few [2] 27/3 44/19
getting [1] 43/5
40/14 41/8
July [5] 9/9 21/8 21/14
hearing [11] 1/10 5/18
field [1] 12/1
give [6] 4/5 14/1 19/17
5/22 6/21 13/8 23/3
inbox [1] 37/13
29/17 30/17
file [25]
20/15 36/12 38/21
include [3] 22/10 29/23 July 28 [4] 9/9 21/8
32/19 35/3 35/7 43/16
filed [13] 12/3 24/18
given [6] 11/8 13/14
43/17
30/16
21/14 29/17
30/7 31/18 34/12 34/22
17/9 19/3 20/16 28/2
hearings [2] 15/24 27/3 including [2] 9/9 9/22
July 28th [1] 30/17
36/1 36/19 38/9 39/12
giving [2] 8/16 17/10
held [3] 4/6 4/25 23/5
incredibly [1] 18/17
June [1] 8/18
39/20 43/24 44/13
indeed [4] 15/19 24/21 June 1 [1] 8/18
goes [1] 21/15
helpful [1] 14/15
files [3] 6/23 31/5 31/14
going [16]
helping [1] 15/4
24/21 24/22
jurist [1] 12/25
filing [14] 30/2 30/11
gonna [1] 30/1
Hence [1] 7/1
indicates [1] 3/7
just [25]
36/15 37/3 37/5 37/18
good [9] 3/5 3/17 5/2
inference [2] 10/8 32/24 Justice [3] 11/20 17/14
here [15] 3/8 5/9 5/13
everything [4] 13/9 14/4
37/7 40/16
evidence [5] 6/3 7/17
8/19 18/7 24/10
evidencing [1] 7/12
ex [2] 40/14 41/8
exact [1] 26/15
exactly [3] 27/11 31/13
39/7
examination [1] 41/8
examine [1] 9/3
examined [1] 24/6
example [1] 41/4
exchange [4] 8/6 8/8
22/9 29/14
exclude [1] 40/22
exist [4] 10/7 10/9 11/1
32/23
existed [4] 10/20 10/22
11/2 12/7
exists [5] 11/10 11/13
14/11 16/7 26/1
experience [1] 35/8
expert [4] 9/3 13/24
14/2 17/10
expertise [1] 24/20
experts [3] 14/3 23/21
24/17
explain [1] 36/18
explanation [1] 20/5
expose [1] 14/14
extension [2] 9/1 15/8
extent [3] 22/1 29/6
38/20
extreme [2] 10/2 25/25
37/8 44/20
GOODMAN [5] 1/11
3/4 37/14 38/24 40/8
gosh [3] 4/1 4/16 5/1
got [4] 3/8 14/20 42/18
42/22
gotten [3] 4/19 8/13
41/24
Government [14] 6/15
6/18 7/3 13/13 13/17
21/3 21/12 22/14 22/18
23/1 23/5 24/11 34/7
34/8
Government's [1] 32/6
grant [1] 21/12
great [3] 11/5 35/15
43/11
grounds [1] 36/18
guess [2] 4/6 4/22
guidance [2] 31/10
38/22
49
K
keep [1] 9/24
keeping [3] 5/25 8/17
11/18
Kimmel [2] 3/19 3/22
kind [5] 17/16 32/12
32/22 35/13 38/16
Kirk [1] 24/17
Klayman [39]
knee [2] 38/9 38/10
Knight [2] 2/9 33/5
knives [1] 36/7
know [35]
knowing [1] 28/3
knowledge [3] 20/16
24/6 26/8
knows [3] 8/25 26/11
43/20
L
laid [1] 42/14
Lambert [1] 42/24
language [1] 40/3
Larry [3] 2/2 3/14 16/20
last [4] 3/18 13/24 17/10
27/3
lately [1] 5/7
laughing [1] 42/19
Laura [2] 2/5 5/4
law [3] 2/3 27/22 33/1
lawsuit [1] 31/14
lawsuits [1] 20/2
lawyer [1] 27/21
lawyers [1] 33/5
lead [2] 16/12 19/23
least [1] 38/7
leave [1] 6/2
left [1] 43/2
legal [1] 11/5
legally [1] 42/15
legitimate [1] 14/8
let [6] 15/3 16/5 20/25
34/23 36/22 40/4
let's [7] 3/11 15/6 18/14
27/5 28/15 37/1 41/4
letter [19]
letters [1] 37/3
liability [1] 11/3
lightly [1] 16/18
likely [1] 32/15
limited [1] 9/9
line [3] 3/7 14/5 26/6
Listen [1] 43/15
litigation [3] 22/21 29/4
40/22
litigations [1] 21/25
little [1] 43/5
local [2] 36/17 39/15
locate [6] 7/3 7/18 8/11
9/17 11/13 31/11
locating [1] 6/18
location [2] 9/7 29/22
long [2] 24/23 34/12
looked [3] 3/24 15/25
M
Machiavellian [1] 36/7
Magazine [1] 13/10
magistrate [2] 1/12
17/22
mail [33]
mails [6] 19/18 30/19
31/8 34/16 34/20 37/3
main [1] 18/8
major [1] 37/25
makes [2] 8/20 24/15
making [8] 12/11 13/5
18/23 26/4 27/8 28/7
33/9 38/16
man [1] 11/24
manner [2] 10/1 25/7
manufactured [1] 28/8
Maricopa [1] 23/19
MARRA [1] 1/2
married [1] 4/19
Marshals [1] 24/13
MARTINEZ [3] 3/3
13/3 30/8
massive [6] 7/1 8/20
19/2 30/22 31/4 31/14
material [4] 30/15 31/4
41/9 41/16
materials [7] 22/20
36/13 36/16 37/15 38/1
38/6 42/11
matter [9] 5/14 11/22
12/5 12/8 12/20 16/17
18/11 32/12 45/13
matters [2] 12/14 12/16
maybe [9] 4/18 4/19
17/21 27/2 33/4 33/4
33/5 39/10 39/11
me [31]
mean [10] 12/18 16/21
17/13 17/17 28/9 35/1
35/25 39/2 40/8 42/19
meaning [1] 26/17
means [3] 7/2 36/17
44/15
meant [1] 13/14
meantime [1] 15/16
meet [2] 7/25 8/8
meeting [1] 11/25
memo [1] 23/22
memoranda [2] 23/4
32/13
memorandum [4] 10/11
33/1 33/11 33/14
memorialized [1] 21/13
memorializing [1] 38/21
memos [1] 37/4
mentioned [4] 21/4
22/11 22/22 23/16
mere [1] 44/12
merely [1] 39/25
Merit [1] 45/10
Miami [4] 1/7 2/4 2/10
N
naive [1] 32/1
name [4] 7/7 14/2 17/10
25/13
national [5] 14/25 16/16
19/12 34/5 35/18
nature [1] 39/11
necessary [4] 8/11 15/7
15/9 33/16
need [10] 4/24 9/2 12/6
15/12 22/3 29/8 30/9
33/11 38/9 39/12
needed [1] 7/5
needs [1] 34/21
neither [2] 22/18 26/2
network [2] 24/4 24/9
Nevada [1] 23/4
never [12] 4/19 11/17
13/12 15/25 17/23 18/15
18/16 18/16 20/18 23/10
27/18 32/24
news [2] 12/15 13/11
newspaper [1] 17/7
next [3] 30/10 30/24
44/19
nice [2] 25/23 27/12
night [1] 3/19
nilly [3] 11/3 28/1 36/11
no [27]
noise [1] 3/6
nonclassified [1] 6/6
none [2] 24/6 45/6
Notably [1] 6/17
note [1] 13/13
noted [1] 18/6
nothing [2] 26/19 36/25
notice [2] 10/19 30/2
notion [1] 40/17
notwithstanding [1]
32/16
November [1] 23/23
November 13th [1]
23/23
NSA [2] 23/21 24/17
number [3] 7/6 33/10
33/10
NW [1] 2/6
O
oath [1] 20/22
Obama [3] 35/4 35/14
43/13
objected [1] 30/6
objection [14] 8/5 12/25
13/18 14/8 14/8 14/14
15/16 17/19 19/11 22/8
22/14 26/6 26/21 29/13
objection's [1] 15/19
50
S
safety [1] 34/6
sake [3] 18/14 35/22
37/1
same [3] 7/12 41/20 42/5
sanction [2] 23/8 32/9
sanctioned [1] 23/8
sanctions [5] 5/17 5/19
10/3 25/10 32/7
Sandy [1] 5/10
Sanford [1] 2/8
satisfied [1] 9/21
say [10] 5/15 6/14 10/17
15/22 21/15 29/18 37/1
38/13 39/10 41/4
saying [10] 13/1 13/3
16/1 16/6 16/10 19/23
26/25 34/18 35/21 40/5
says [9] 21/9 22/18 26/8
26/9 26/14 26/14 26/15
27/11 41/25
scandals [1] 42/23
Schwartz [17]
Schwartz's [2] 25/13
28/20
seal [45]
sealed [1] 39/5
sealing [3] 39/17 40/23
42/7
second [3] 12/2 39/10
43/22
Secondly [2] 10/23 26/7
secretly [1] 5/24
security [8] 14/25 16/16
19/13 34/6 35/18 41/25
51
V
value [1] 27/23
variety [1] 32/12
various [1] 30/15
versus [1] 3/3
very [15] 5/11 11/24
12/13 12/15 12/20 12/24
16/17 23/18 35/4 35/4
35/10 35/11 36/6 42/14
43/14
vest [1] 11/19
view [2] 8/22 38/6
violation [2] 14/2 32/10
volume [1] 24/3
52
Y
yeah [3] 4/8 4/22 16/4
year [2] 24/19 34/12
years [1] 34/11
yes [10] 3/14 4/11 4/12
10/16 25/21 26/12 28/22
40/18 40/19 41/22
yet [1] 15/9
you'll [4] 37/8 43/23
EXHIBIT 4
Mr. Klayman reference my October 1, 2015 email to you. Since that date, I have received the following from you:
an email dated October 12, stating that you had asked Mr. Montgomery to clarify if and where any software
can be located on the disks he provided and that you would get back to me in a few days;
two emails dated October 13. In the first email, you stated that you were forwarding information from Mr.
Montgomery in response to my October 1, 2015 letter [sic] and that this information is provided for use solely
in your criminal investigation. The second email, sent a few minutes later, included the same .pdf attachment
and link to Dropbox that had been included in the first email;
three emails dated October 21. In the first, you stated that you were forwarding information which may help
your agents locate any of the subject software, in whole or in part, if it exists on the hard drives provided. The
second email, sent a few minutes later, contained the same text. In the third email, you asked for a telephone
call to discuss the criminal and civil matters.
Yesterday (October 22) I checked the PACER docket and saw your October 21, 2015 Supplement to Notice of Filing, etc.
(docket no. 158). In that filing, you state that the Declaration of Mr. Montgomery attached to that filing was provided to
the FBI today. I dont know how or to whom you sent that declaration, but I did not receive it from you.
Mr. Montgomery states in that declaration that he does not believe that he provided the subject software to the
FBI. His declaration then references additional information (attached) which may allow the FBI to see if the software in whole or in part exists on the drives I turned over to the FBI to conduct its ongoing classification review. The
additional information purportedly attached to the declaration is not included in the PACER filing. Also, it is unclear
why the declaration refers to an ongoing classification review as you know, the FBIs September 8, 2015 letter to you
pointed out that the FBI took possession of the hard drives with the sole understanding that the Government would be
conducting a review of your clients allegations, and for no other purpose and that the Government never agreed to
undertake a classification review of any material on the hard drives.
You may recall that my October 1, 2015 email stated that to ensure that FBI resources are not wasted looking for
software that does not exist, we are requesting that Mr. Montgomery confirm, in writing, that the software being
requested in civil discovery can be found on one or more of the hard drives that he provided to the FBI on August 19,
2015, if that is in fact the truth. This request is consistent with the agreement that you reached with the U.S. Attorneys
Office, that requests for copies of materials on the hard drives would not unduly burden the FBI. Mr. Montgomery has
now stated that he does not believe that the subject software is on the hard drives. Not surprisingly given that belief -Mr. Montgomery has not provided us the detailed information requested in the September 8, 2015 letter which would
allow us, without undue burden, to locate the software among the 51.6 million files which he claims to have provided
us. For these reasons, the FBI will not search the drives to locate software requested in the Risen litigation.
Ted Schwartz
Assistant General Counsel
Civil Litigation Unit I, OGC
FBI
1
EXHIBIT 5
EXHIBIT 6
Ratner, Micah
Thursday, September 24, 2015 3:18 PM
'Larry Klayman'
Handman, Laura; Brian.Toth@hklaw.com; <Sandy.Bohrer@hklaw.com>; Dina James;
Naveed Mahboohian; Jonathon Moseley
RE: Rule 72
Mr. Klayman,
I was out yesterday for Yom Kippur. Your position is incorrect. As Judge Goodman held in denying your request for a
stay, and as we correctly stated in our opposition to your objection and in emails to you, Rule 72(a) provides in relevant
part that when a magistrate judge decides a pretrial matter [that] is not dispositive, the district judge must . . . modify
or set aside any part of the order that is clearly erroneous or is contrary to law. Fed. R. Civ. P. 72(a). De novo review
you cite from Rule 72(b)(3) applies only when the magistrate decides a dispositive issue. Fed. R. Civ. P. 72(b)(1)-(3).
Thus, contrary to your statements below, de novo review does not apply to your objections to the magistrates nondispositive order requiring you to produce the software by September 4.
Similarly, your assertion that you do not need to obtain a stay of the magistrate judges order while your objection to
the district court is pending is incorrect. Even though a party may object to a magistrate judges order on a nondispositive matter, the order is nonetheless a final order absent reversal by the district court. TemPay, Inc. v. Biltres
Staffing of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1260 (M.D. Fla. 2013) (collecting cases). As a result, an objection to
such final order does not stay the order or relieve the party of the obligation to comply with the order. Id. See also, e.g.,
Myers v. Cent. Fla. Investments, Inc., 2006 WL 462589, at *1 n.1 (M.D. Fla. Feb. 27, 2006) (Filing an objection to a
discovery order does not operate as a stay of the Order.); 12 Wright, Miller, & Marcus, Federal Practice and Procedure,
3069 (2d ed.) (stating that a timely objection does not automatically render the magistrate judges ruling invalid until
the district court acts on the objection). It is plain you understood no automatic stay of Judge Goodmans August 22
order was in place, since you moved for a stay of that order pending your objection. And Judge Goodman recognized
that there was no automatic stay when he denied your motion to stay and ordered you, once again, to produce the
software by September 4.
We ask you again to produce the software by September 24, or, at the very least, produce evidence that you have taken
all necessary steps to obtain the software such as outlined in Mr. Bakers letter of Sept. 8. Otherwise, we may then seek
appropriate relief from Judge Goodman for your refusal to comply with his August 22 order.
Thank you,
Micah
Micah Ratner | Davis Wright Tremaine LLP
1919 Pennsylvania Avenue NW, Suite 800 | Washington, DC 20006-3401
Tel: 202-973-4223 | Fax: 202-973-4423
Email: micahratner@dwt.com | Website: www.dwt.com
Anchorage | Bellevue | Los Angeles | New York | Portland | San Francisco | Seattle | Shanghai | Washington, D.C
Please Fed. R. Civ. Proc. 72 before you consider filing a motion with regard to our objection to the magistrate
judge's order concerning the software and related matters. Subpart (3) in particular of the rule is most
instructive.
Should you decide nevertheless to not allow the judge to decide de novo the issues pending and file a frivolous
motion, we will request sanctions.
Micah, I do not appreciate your mis-citing law which is textbook and blackletter in opposition to your position
about that our client has to seek a stay while our objection is heard by the judge. Thank you for using a
"different approach" in the future.
Sincerely,
Larry Klayman