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IN UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 15-cv-20782-Martinez-Goodman
DENNIS MONTGOMERY,
Plaintiff,
v.
RISEN, ET AL.
Defendants.
_____________________________/
PLAINTIFF’S OBJECTION TO PORTIONS OF
MAGISTRATE JUDGE’S ORDER OF AUGUST 22, 2015
Pursuant to Federal Rules of Civil Procedure (“FRCP”) 59 and 72, which govern a
district cour t’s consideration of a party’s objection to a magistrate judge’s order, Plaintiff Dennis
Montgomery (“Plaintiff”) hereby respectfully objects to Magistrate Judge Jonathan Goodman’s
Order of August 22, 2015 (“Order”) (Exhibit 1), to the U.S. District Court for the Southern
District of Florida (“District Court”). Plaintiff specifically objects to the portion of the Order
dealing with the production of any as yet undetermined non-classified software and related
documents to Defendants. Plaintiff has fully complied with all other aspects of the Order.
Plaintiff is an expert on encryption who previously was employed by companies that
provided decryption technology for U.S. intelligence agencies such as the National Security
Agency (“NSA”) and the Central Intelligence Agency (“CIA”) to decipher coded messages by
Osama Bin Laden and other terrorist groups through broadcasts made on Al-Jazeera television.
Defendants defamed Plaintiff by publishing in Florida, nationwide, and internationally that
Plaintiff is a con-artist, a fraud, a hoax, and dishonest, among a myriad of other false and
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misleading published statements. Among other defamatory publications, Defendants state that
Plaintiff Montgomery defrauded CIA Director George Tenet and the U.S. Government generally
by performing “one of the most elaborate and dangerous hoaxes in American history.”
In his capacity as an expert working with the NSA, CIA, and Defense Intelligence
Agency (“DIA”) Plaintiff was granted a Special Access Programs (“SAP”) security clearance
and thus was able to view and access and retain classified information. During the course of his
work for the NSA, CIA, and other intelligence agencies, Plaintiff saw evidence of illegal and
unconstitutional surveillance on the American people and felt a moral obligation, despite his
severe disabilities including a potentially fatal brain aneurism, to become a whistleblower in
order to shed light on, expose, and remedy the unconstitutional actions of the intelligence
agencies. Plaintiff came forward and began his work as a whistleblower before this lawsuit had
originated and has been in the process of coming forward with his information for over a year,
well before this lawsuit was conceived of or filed. In conjunction with Director of the Federal
Bureau of Investigation (“FBI”), the Honorable James Comey, and the FBI’s General Counsel,
James Baker, as well as the Honorable Royce C. Lamberth, U.S. District Court Judge for the
District of Columbia and Assistant U.S. Attorney Deborah Curtis, who is a renowned and award-
winning government national security expert, a process was created for Plaintiff to legally
provide all his information to the FBI. As a result, pursuant to law, Plaintiff turned over all
information of the widespread illegal surveillance by governmental agencies such as the NSA,
CIA, and DIA.
During discovery, Defendants propounded a request for production of documents which
sought a copy of Plaintiff ’s alleged software. Plaintiff objected to this request for production of
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documents on relevancy and other grounds, and the issue went in front of Magistrate Judge
Jonathan Goodman. A hearing was held on this and other issues on August 21, 2015.
Magistrate Judge Goodman, in his Order of August 22, 2015, ordered that Plaintiff
consult with the FBI in order to produce non-classified software to Defendants by September 4,
2015. Specifically, Magistrate Judge Goodman ordered:
Concerning Defendants’ Request for Production 8 to Plaintiff, Plaintiff shall, by
September 4, 2015, use his self ‐described right of continued access tononclassified information (in relation to his turning over the subject software tothe FBI) and produce the software to Defendants. To accomplish this, Plaintiff’s
counsel shall, by August 26, 2015, send a letter to FBI General Counsel James A.
Baker and Assistant United States Attorney Deborah Curtis, to advise these
attorneys that Plaintiff has been ordered by this Court to produce the subjectsoftware and was specifically directed to use his right of continued access to
non‐classified information to obtain the original software (or a copy of it) fromthe FBI. Plaintiff shall copy defense counsel on this letter and, by August 27,
2015, shall file the letter under a Notice of Filing on the record in this case.
Exhibit 1 at pp. 2-3. See also Exhibit 2 – Letter to FBI and Assistant U.S. Attorney. Plaintiff has
thus far produced everything non-objectionable that he was ordered to produce, except for any
classified information.
1
The issue of the software is nothing more than a red herring, and the software at issue is
irrelevant to this lawsuit. First, Defendants, in their Motion to Dismiss (Docket No. 52) admit
and concede that Defendants’ book, written by Defendant James Risen (“Risen”), was based on
previously published articles by Bloomberg News and Playboy and non-classified public court
and congressional records. Specifically, in their Motion to Dismiss, Defendants stated:
Risen expressly acknowledges in the Book that he relied on the Playboy Articleand New York Times Article. (Book at 53.) The Book added Montgomery’s
denials to the narrative, obtained after Risen interviewed him. ( Id . at 33-34, 37,
51, 53).
1 Plaintiff’s counsel has never seen, been in possession of, or come across any classified
information.
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Motion to Dismiss (Docket No. 52) at pp. 10. Further, Defendants admitted and conceded:
2. Reliance on FBI Reports, Court Documents, and Congressional Records
for Allegations of Fake Software
As with his New York Times Article and prior media accounts, Risen primarily based the Chapter on court records and other official documents. The Chapter
refers to FBI interviews of Warren Trepp, Montgomery’s partner in the software
venture, eTreppid, and its employees. The Book expressly states that, “accordingto court documents that include his statements to the FBI,” Montgomery’s
software was fake because “Trepp later told the FBI that he eventually learned
that Montgomery had no real computer software programming skills.” (Book at
37.)10 Similarly, the Chapter accurately quotes statements in FBI reports in whichan eTreppid employee Sloan Venables began to suspect Montgomery’s software
was fake. Venables “told the FBI that another employee, Patty Gray, began to
suspect that Montgomery ‘was doing something other than what he was actuallytelling people he was doing’” and “added in his statement to the FBI that he knew
that ‘Montgomery promised products to customers that he had not been
completed or even assigned to programmers.’” (Book at 48-49) (emphasis added).
Then, citing court documents, the Chapter states: “Over the Christmas holidays
[of 2005], Montgomery allegedly went into eTreppid’s offices and deleted all of
the computer files containing his source code and software development data,according to court documents.” (Book at 49) (emphasis added). Later,
“[a]ccording to court documents, [Trepp] told the FBI that Montgomery had
stolen the software eTreppid had used on secret Pentagon contracts” but “[a]s
federal investigators moved in to investigate the alleged theft of the technology,they heard from Trepp and others that Montgomery’s alleged technology wasn’t
real.” ( Id.) (emphasis added). The Chapter correctly summarizes FBI reports
contained in court records showing that the technology “wasn’t real.”
Motion to Dismiss (Docket No. 52) at pp. 10-11. Defendants further admitted and
conceded:
The Book also expressly relies on congressional records to confirm that
Montgomery’s software was fake. The Book explains that, “[a]t the time of theChristmas 2003 scare, John Brennan was the head of the Terrorist Threat
Integration Center,” which “meant that Brennan’s office was responsible for
circulating Montgomery’s fabricated intelligence to officials in the highest
reaches of the Bush administration.” (Book at 47.) The Book states that, “[i]n2013, while the Senate was considering whether to confirm Brennan to run the
CIA, Sen. Saxby Chambliss, a Georgia Republican who was vice chairman of the
Senate Intelligence Committee, submitted a written question to Brennan about hisrole in the intelligence community’s dealings with Montgomery.” ( Id.) Indeed,
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Senator Chambliss’ written question titled “Bogus Intelligence,” states that
“[m]edia reports indicate that when you led the Terrorist Threat Integration
Center (TTIC), you championed a program involving IT contractors in Nevadawho claimed to intercept al-Qaida targeting information encrypted in the
broadcasts of TV news network Al Jazeera.” The written questions confirm in
congressional records that not only “[t]he media” but “documents we havereviewed show, that CIA officials derided the contractor’s information, butnonetheless, you passed it to the White House and alert levels ended up being
raised unnecessarily.” ( Id.) (emphasis added). Accurately quoting Brennan’s
response, the Book states that, “[i]n response”: (1) “Brennan denied that he had been an advocate for Montgomery and his technology”; (2) “insisted that the
Terrorism Threat Integration Center was merely a recipient of the information and
data, which had been passed on by the CIA”; (3) he “included Montgomery’s data
‘in analytic products’”; and (4) confirmed that Montgomery’s purported software“‘was determined not to be a source of accurate information.’” (Book at 47)
(quoting Brennan Response at 9) (emphasis added).
Motion to Dismiss (Docket No. 52) at pp. 12-13. Defendants further admitted and
conceded:
3. Reliance on FBI Reports and Court Documents for Allegations of Rigged
Demonstrations of Software to U.S. Government Officials
The Book also explicitly relies on court records and FBI reports, in which “Trepp
also described to federal investigators how eTreppid employees had confided to
him that Montgomery had asked them to help him falsify tests of his object
recognition software when Pentagon officials came to visit.” (Book at 37.) Indeed,“Trepp said that on one occasion, Montgomery told two eTreppid employees to
go into an empty office and push a button on a computer when they heard a beep
on a cell phone.” ( Id.) Then “[a]fter he was in place in the field, he used a hiddencell phone to buzz the cell phone of one the eTreppid employees, who then
pushed a key on a computer keyboard, which in turn flashed an image of a
bazooka on another screen prominently displayed in front of the military officersstanding in another room, according to court documents.” ( Id.) (emphasis added).
Thus, “[t]he military officers were convinced that Montgomery’s computer
software had amazingly detected and recognized the bazooka in Montgomery’s
hands.” ( Id.) The Book again includes Montgomery’s denials. ( Id . at 15, 37.)Once again, the Book accurately describes the FBI report contained in court
documents.
Id. Indeed, Defendants based their pending motion to dismiss on the premise that no government
information, including any likely classified software, is necessary for the Court to consider
dismissing or try this case before a jury. Defendants are talking out of both sides of their
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mouths. They indicate that no classified material was used for the writing of Defendant Risen’s
book but are now stating that they need classified software.
Further, Defendant Risen’s deposition confirmed that he did not have access to any
classified information and not base his book on this. Specifically, as stated under oath in his
deposition taken on June 19, 2015:
Q And you say that based your reporting in part on stories written by others such
Aram Roston of Playboy magazine who wrote a story, The Man Who Conned the
Pentagon?
A Yeah. That was written long before our story.
See Exhibit 3 – Transcript of Risen Deposition at pp. 124:11 – 124-16.
Q Now Mr. Risen, is it correct that you -- other than what was testified to in front
of Congress which you claim was testified to references to documents at the CIA,
you did not have access to any government documentation in writing your book,Pay Any Price?
A No, we did because there were lots of court records related to FBI
investigations, Air Force investigations, lots of emails and other records
related to and depositions, so there were many government documents that
we relied on that were all public, had filed in court cases. And when, as I
said, when the Senate Chambliss referred specifically
Q Now, the only documents you got were those documents that were public?
A Court records, yes. Public court records.
Q Okay.
A And we didn't -- I didn't attribute anything to classified documents that I had
obtained from the CIA directly in connection with this.
Id. at pp. 111:1 – 111-7. Since Defendant Risen admitted that he did not have access to
classified information, Defendant Risen would not have had, and did not have access to any such
software when he made the false and defamatory statements about Plaintiff. Thus, the software
is not relevant to this lawsuit and must not respectfully be produced by Plaintiff.
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In addition, quite apart from lack of relevancy of any such software, after many months
of discovery Defendants provided nothing more than the name of their purported expert witness
on the absolute last day of the deadline to designate experts which was on August 3, 2015. Their
12th hour action underscores how they allowed time to tick off for many months – again
confirming that their demand for classified software is simply a litigation tactic.
Federal Rule of Civil Procedure 26.1 provides, in pertinent part, the following:
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or
ordered by the court, this disclosure must be accompanied by a written report — preparedand signed by the witness — if the witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as the party's employee
regularly involve giving expert testimony.
The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
case.
Fed. R. Civ. P. 26.1 (Emphasis added).
Incredibly and disingenuously, Defendants stated in an accompanying email that they
were providing just the name of the expert witness. See Exhibit 4 – Email of Defendants’
counsel. However, Defendants still materially failed to provide information as unequivocally
required by FRCP 26.1. Defendants did not include (1) the purported expert’s
qualifications, (2) a list of all other cases within which the expert provided expert
testimony, and (3) a statement of the compensation to be paid for the study and testimony
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in the case. See Exhibit 5. All three of these criteria were not met by the deadline of August
3, 2015.
Accordingly, even if such classified software existed in Plaintiff’s possession, control,
and/or custody, Defendants have forfeited the right and means to use it at trial or for any other
purpose since they forfeited their use of any expert to evaluate any software and waited until the
absolute last minute to provide just the name of their so-called expert. It is therefore apparent
that their professed desire for Plaintiff to produce any software is merely strategically designed
for ulterior irrelevant tactical purposes.
In addition, should this Court order that Plaintiff produce any non-classified software at
issue, Plaintiff will, of course, comply with all of this Court’s orders. The FBI is moving with all
due speed to determine whether the materials Plaintiff provided to it are in fact classified.
Pursuant to Magistrate Judge Goodman’s Order, the FBI has been made aware of the situation
and is working expeditiously. Exhibit 2.
For the forgoing reasons, Plaintiff respectfully objects to and asks that the Court overrule
Magistrate Judge Goodman’s Post-Discovery Hearing Order of August 22, 2015 and asks that
this Court issue an order that Plaintiff is not required to produce software to Defendant as it is
not relevant to this lawsuit and since Defendants are only strategically seeking it for ulterior
irrelevant purposes. In the event this Court makes the determination that any software should still
be produced, Plaintiff respectfully requests that this Court allow the FBI to determine if the
requested materials are in its’ possession and whether they are classified. To turn over any
classified software to Defendants and their counsel would constitute a crime in and of itself, and
ironically subject Defendants and their counsel to potential liability and criminal prosecution.
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Indeed, this underscores why Defendants disingenuous insistence on any classified software is
merely tactical and wholly disingenuous.
For the foregoing compelling reason, Plaintiff ’s objection should respectfully be granted.
Dated: September 4, 2015
Respectfully Submitted,
/s/ Larry KlaymanLarry Klayman, Esq.
FL Bar No. 246220
7050 W Palmetto Park Rd.Suite 15-287
Boca Raton, FL 33433
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 4th day of September, 2015, a true and correct copy ofthe foregoing was served via CM/ECF upon the following:
Sanford Lewis BohrerBrian TothHolland & Knight, LLP
Suite 3000
701 Brickell AveMiami, FL 33131
Email: [email protected]
Email: [email protected]
Laura R. Handman
Micah Ratner
Davis Wright Tremaine LLP1919 Pennsylvania Ave., N.W., Suite 800
Washington D.C. 20006-3401
Email: [email protected]
Email: [email protected]
Attorneys for Defendants
/s/ Larry Klayman
Larry Klayman, Esq.
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Exhibit 1
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 15‐20782‐CIV‐MARTINEZ/GOODMAN
DENNIS L. MONTGOMERY,
Plaintiff,
v.
JAMES RISEN, et al. ,
Defendants.
______________________________/
POST‐DISCOVERY HEARING ORDER
The parties noticed [ECF Nos. 90; 104] numerous discovery issues for hearing
before the Undersigned. Additionally, the Undersigned granted [ECF No. 91] the
parties’ request to brief certain issues before the hearing. The parties filed memoranda
of law [ECF Nos. 94; 96] on those issues, and the Undersigned held the discovery
hearing on
August
21,
2015
[ECF
No.
106].
For
the
reasons
stated
on
the
record,1
the
Undersigned ORDERED the following:
1) Concerning Defendants’ Request for Production 21 to Plaintiff, Plaintiff’s
objection is overruled. Plaintiff shall, by August 28, 2015, produce the bank records
indicating the location of the bank where Plaintiff’s social security payments for
disability are directly deposited. Plaintiff may redact the bank records, but the
1 If any party appeals this Order to the District Court, then the transcript of the
hearing will need to be ordered, as it outlines the Undersigned’s reasoning.
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unredacted portions must disclose the location of the bank and confirm that this is
where the deposits are made.
2) Concerning Defendants’ Request for Production 52 to Plaintiff, Plaintiff
shall, by September 4, 2015, produce all responsive documents from 2003 to the present
that he has in his custody or control, including, but not limited to, bank records, 1099
forms, W2 forms, etc.
3) Concerning Defendants’ Request for Production 33 to Plaintiff, Plaintiff
shall, by
September
4,
2015,
produce
all
medical
records
that
have
not
yet
been
produced from April 2014 through the present.
4) Concerning Defendants’ Request for Production 9 to Plaintiff, Plaintiff
shall, by August 28, 2015, advise defense counsel of the Bates number of the document
that was supposedly turned over in response to this request. If that document was not
turned over already, then Plaintiff shall produce that document by August 28, 2015.
5) Concerning Defendants’ Request for Production 7 to Plaintiff, Plaintiff
shall, by August 31, 2015, turn over all documents concerning this request, which
would now include documents related to the disclosure and production of the subject
software to the FBI.
6) Concerning Defendants’ Request for Production 8 to Plaintiff, Plaintiff
shall, by September 4, 2015, use his self‐described right of continued access to non‐
classified information (in relation to his turning over the subject software to the FBI)
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and produce the software to Defendants. To accomplish this, Plaintiff’s counsel shall, by
August 26, 2015, send a letter to FBI General Counsel James A. Baker and Assistant
United States Attorney Deborah Curtis, to advise these attorneys that Plaintiff has been
ordered by this Court to produce the subject software and was specifically directed to
use his right of continued access to non‐classified information to obtain the original
software (or a copy of it) from the FBI. Plaintiff shall copy defense counsel on this letter
and, by August 27, 2015, shall file the letter under a Notice of Filing on the record in this
case.
7) Concerning Plaintiff’s request for the “20,000 pages of documents”
referenced by Eric Lichtblau in the relevant email, Defendant James Risen shall, by
August 28, 2015, file an affidavit or sworn statement unequivocally stating whether he
was ever in possession of the thumb drive on which Mr. Lichtblau held what he
described as 20,000 pages of documents, and, regardless of whether he ever was in
possession of this thumb drive, if he knows the present whereabouts of this thumb
drive. If he does know the current location, then he shall provide the location.
DONE AND ORDERED in Chambers, at Miami, Florida, August 22, 2015.
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Copies furnished to:
The Honorable Jose E. Martinez
All counsel of record
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Exhibit 2
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 15‐20782‐CIV‐MARTINEZ/GOODMAN
DENNIS L. MONTGOMERY,
Plaintiff,
v.
JAMES RISEN, et al. ,
Defendants.
______________________________/
POST‐DISCOVERY HEARING ORDER
The parties noticed [ECF Nos. 90; 104] numerous discovery issues for hearing
before the Undersigned. Additionally, the Undersigned granted [ECF No. 91] the
parties’ request to brief certain issues before the hearing. The parties filed memoranda
of law [ECF Nos. 94; 96] on those issues, and the Undersigned held the discovery
hearing on
August
21,
2015
[ECF
No.
106].
For
the
reasons
stated
on
the
record,1
the
Undersigned ORDERED the following:
1) Concerning Defendants’ Request for Production 21 to Plaintiff, Plaintiff’s
objection is overruled. Plaintiff shall, by August 28, 2015, produce the bank records
indicating the location of the bank where Plaintiff’s social security payments for
disability are directly deposited. Plaintiff may redact the bank records, but the
1 If any party appeals this Order to the District Court, then the transcript of the
hearing will need to be ordered, as it outlines the Undersigned’s reasoning.
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unredacted portions must disclose the location of the bank and confirm that this is
where the deposits are made.
2) Concerning Defendants’ Request for Production 52 to Plaintiff, Plaintiff
shall, by September 4, 2015, produce all responsive documents from 2003 to the present
that he has in his custody or control, including, but not limited to, bank records, 1099
forms, W2 forms, etc.
3) Concerning Defendants’ Request for Production 33 to Plaintiff, Plaintiff
shall, by
September
4,
2015,
produce
all
medical
records
that
have
not
yet
been
produced from April 2014 through the present.
4) Concerning Defendants’ Request for Production 9 to Plaintiff, Plaintiff
shall, by August 28, 2015, advise defense counsel of the Bates number of the document
that was supposedly turned over in response to this request. If that document was not
turned over already, then Plaintiff shall produce that document by August 28, 2015.
5) Concerning Defendants’ Request for Production 7 to Plaintiff, Plaintiff
shall, by August 31, 2015, turn over all documents concerning this request, which
would now include documents related to the disclosure and production of the subject
software to the FBI.
6) Concerning Defendants’ Request for Production 8 to Plaintiff, Plaintiff
shall, by September 4, 2015, use his self‐described right of continued access to non‐
classified information (in relation to his turning over the subject software to the FBI)
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and produce the software to Defendants. To accomplish this, Plaintiff’s counsel shall, by
August 26, 2015, send a letter to FBI General Counsel James A. Baker and Assistant
United States Attorney Deborah Curtis, to advise these attorneys that Plaintiff has been
ordered by this Court to produce the subject software and was specifically directed to
use his right of continued access to non‐classified information to obtain the original
software (or a copy of it) from the FBI. Plaintiff shall copy defense counsel on this letter
and, by August 27, 2015, shall file the letter under a Notice of Filing on the record in this
case.
7) Concerning Plaintiff’s request for the “20,000 pages of documents”
referenced by Eric Lichtblau in the relevant email, Defendant James Risen shall, by
August 28, 2015, file an affidavit or sworn statement unequivocally stating whether he
was ever in possession of the thumb drive on which Mr. Lichtblau held what he
described as 20,000 pages of documents, and, regardless of whether he ever was in
possession of this thumb drive, if he knows the present whereabouts of this thumb
drive. If he does know the current location, then he shall provide the location.
DONE AND ORDERED in Chambers, at Miami, Florida, August 22, 2015.
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4
Copies furnished to:
The Honorable Jose E. Martinez
All counsel of record
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Exhibit 3
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Deposition of JAMES RISEN Conductedon June 19, 2015
PLANET DEPOS | 888.433.3767 | WWW.PLANETDEPOS.COM
1 (Pages 1 to 4)
1
1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
2
3
4 -------------------------------X )
5 DENNIS MONTGOMERY, ) )
6 Plaintiff, ) ) Case No.:
7 v ) 15-cv-20782 )
8 JAMES RISEN, HOUGHTON MIFFLIN )HARCOURT PUBLISHING CO., )
9 HOUGHTON MIFFLIN HARCOURT )COMPANY , )
10 ) Defendant. )
11 )-------------------------------X
12
13 14
15
16 TRANSCRIPT Deposition ofJAMES RISEN
17 WASHINGTON, D C18 Friday, June 19, 201519 9:02 a.m.20
21
22 Job No.: 8582823 Pages: 1 - 40724 Reported by: Donna Marie Lewis, RPR, CSR25
2
1
2
Transcript of deposition of JAMES
RISEN, held at the offices of:
3
4 DAVIS WRIGHT TREMAINE, LLP
5 1919 Pennsylvania Avenue NW
6 Suite 800
7 Washington, D C 20006
8 (202) 973-4200
9
10 Pursuant to re-Notice before Donna Marie
11 Lewis, RPR, CSR, Notary Public of and for the District
12 of Columbia.
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 A P P E A R A N C E S
2 ON BEHALF OF PLAINTIFF DENNIS MONTGOMERY:
3 LARRY KLAYMAN,ESQUIRE
4 2020 Pennsylvania Avenue, NW
5 Suite 800
6 Washington, DC 20006
7 (310) 595-0800
8 ON BEHALF OF DEFENDANT HOUGHTON MIFFLIN HARCOURT
9 COMPANY:
10 LAURA R. HANDMAN, ESQUIRE
11 DAVIS WRIGHT TREMAINE, LLP
12 1919 Pennsylvania Avenue, NW
13 Suite 800
14 Washington, D C 20006
15 (202) 973-4224
16
17 MICAH RATNER, ESQUIRE
18 DAVIS WRIGHT TREMAINE, LLP19 1919 Pennsylvania Avenue, NW
20 Suite 800
21 Washington, D C 20006
22 (202) 973-4223
23 ALSO PRESENT:
24 ANTHONY FIELDS, VIDEOGRAPHER
25
4
1 INDEX
2 WITNESS:
3 JAMES RISEN4 EXAMINATION BY: PAGE
5 By Mr. Klayman 6
6
7 E X H I B I T S
8 EXHIBITS: DESCRIPTION PAGE
9 No. 1 Email 47
10 No. 2 Email dated 9/23/11 99
11 No. 3 Book, Pay Any Price 123
12 No. 4 Playboy Article 124
13 No. 5 Notes 147
14 No. 6 New York Times Article 164
15 No. 7 Email dated 10/5/12 176
16 No. 8 Contract with Houghton Mifflin 191
17 No. 9 Declaration 203
18 No. 10 Amended Complaint 211
19 No. 11 Declaration of Dennis Montgomery 229
20 No. 12 Article from 2011, Bates No. DEFS002587 254
21 No. 13 Bates DEFS002528 thru 2530 312
22 No. 14 Bates DEFS004140 thru 4147 360
23 No. 15 Bates DEFS003992 thru DEFS004003 362
24 No. 16 Bates DEFS000419 thru DEFS000424 363
25 No. 17 Bates DEFS003882 379
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Deposition of JAMES RISEN Conductedon June 19, 2015
PLANET DEPOS | 888.433.3767 | WWW.PLANETDEPOS.COM
28 (Pages 109 to 112)
109
1 MS. HANDMAN: And Mr. Risen was on
2 assignment.
3 MR. KLAYMAN: I will prove what was said
4 when --
5 MS. HANDMAN: And I was out of the country
6 the week that you wanted to take the deposition, that
7 you had noticed the deposition.
8 MR. KLAYMAN: I have emails to the contrary.
9 MS. HANDMAN: You do not.
10 MR. KLAYMAN: They'll be produced within the
11 motion as part of the pattern of conduct.
12 BY MR. KLAYMAN:
13 Q Now Mr. Risen, is it correct that you --
14 other than what was testified to in front of Congress
15 which you claim was testified to references to
16 documents at the CIA, you did not have access to any
17 government documentation in writing your book, Pay Any
18 Price?19 A No, we did because there were lots of court
20 records related to FBI investigations, Air Force
21 investigations, lots of emails and other records
22 related to and depositions, so there were many
23 government documents that we relied on that were all
24 public, had filed in court cases. And when, as I
25 said, when the Senate Chambliss referred specifically
110
1 to having reviewed a whole series of CIA documents
2 that corroborated the media reports, the many media
3reports that had been published prior to our story and4 Pay Any Price that showed that people at the CIA
5 believed that this was a bogus intelligence operation.
6 Q You never asked any of your government
7 sources for backup documentation with regard to
8 Mr. Montgomery. Did you?
9 MS. HANDMAN: Objection.
10 THE WITNESS: Yes, of course. We always
11 ask. But trying to get classified documents is
12 difficult for a reporter.
13 MS. HANDMAN: Objection.
14 THE WITNESS: So it always -- you know, it
15 is not something that you always get.
16 BY MR. KLAYMAN:
17 Q And you didn't get them here with --
18 A As I said, we got lots of government public
19 records from government cases, including the FBI, the
20 whole investigation, Mr. Heraldson's phone calls
21 with -- or phone call with Mr. Montgomery on behalf of
22 the FBI. So there is lots of documentation.
23 Q But the only thing that you got --
24 A Interviews with eTreppid employees with the
25 FBI, things like --
111
1 Q Now, the only documents you got were those
2 documents that were public?
3 A Court records, yes. Public court records.
4 Q Okay.
5 A And we didn't -- I didn't attribute anything
6 to classified documents that I had obtained from the7 CIA directly in connection with this.
8 Q So with regard to your reporting -- excuse
9 me, with regard to what you wrote about Mr. Montgomery
10 in your book, Pay Any Price, you didn't have any
11 documents that weren't otherwise public. Correct?
12 MS. HANDMAN: Objection.
13 THE WITNESS: I have to review that. I
14 can't -- I think I have given -- I don't recall
15 anything that I haven't turned over.
16 BY MR. KLAYMAN:
17 Q Okay. I think you answered the question,
18 I'm just laying the foundation. However, when19 Mr. Montgomery wanted to give you a story about the
20 mass collection of metadata and other intelligence
21 information on virtually the entire American
22 population by the CIA which you demanded documents
23 from him or you wouldn't report to story?
24 A He made vague assertions that -- and never
25 provided any details. He kept saying that I can't
112
1 really tell you what I'm talking about because I would
2 get in trouble. And so he never provided any details
3at all, even in conversations. And then I said well,4 okay, provide some evidence and I will write a story.
5 I think he has done with other reporters as well as
6 many other people. And I think -- you know, so I kept
7 saying, you provide me the evidence and I will write
8 the story. And he was so vague about what he was
9 talking about that there was never any -- it was never
10 clear exactly what the story was. He kept talking
11 about possible hacking on behalf of the government but
12 he was never providing much detail.
13 Q And neither you nor Mr. Lichtblau or anyone
14 else sought to confirm his story by mentioning it to
15 any of the government people that you communicated
16 with concerning Mr. Montgomery?
17 A No. I don't think that is accurate. I
18 think we did. I think I tried to talk to other people
19 about it, but there was -- there was so little
20 specifics that he had provided that -- in fact no
21 specifics.
22 Q But there is nothing in any of the documents
23 that you produced to show or even suggest that, is
24 there?
25 A You know, I --
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Deposition of JAMES RISEN Conductedon June 19, 2015
PLANET DEPOS | 888.433.3767 | WWW.PLANETDEPOS.COM
31 (Pages 121 to 124)
121
1 drive?
2 A As I said I don't recall a thumb drive. I
3 recall going through the documents and getting the
4 documents from Eric. I don't remember exactly how I
5 got them.
6 Q So Eric lied about the thumb drive?
7 MS. HANDMAN: Objection.
8 THE WITNESS: I don't know. He may have had
9 a thumb drive and then transferred them to his
10 computer and then given them to me. I don't remember.
11 Somehow I got them and he had them.
12 BY MR. KLAYMAN:
13 Q Well, other than the public documents that
14 you claim that you had access to these are the only
15 other documents that you got with regard to
16 Montgomery?
17 MS. HANDMAN: Objection.
18 THE WITNESS: What are you referring to?19 BY MR. KLAYMAN:
20 Q The thumb drive of 20,000 pages or whatever
21 form they came?
22 A That was the court records, the court
23 documents. It was not 20,000 as far as I can tell.
24 Q Now it says here in Exhibit 1 that
25 Mr. Lichtblau spent eight hours with the source, the
122
1 source being Mike Flynn?
2 A Yeah, I believe it was Flynn.
3 Q Did he travel to Mike Flynn's office?4 A I don't remember frankly where they met.
5 Q Who paid for his travel expenses?
6 A I'm sure it was the New York Times.
7 Q Where is Flynn's office?
8 A It is in California.
9 Q Where in California?
10 A I don't remember where it was at that time.
11 I didn't go see him so I don't know.
12 Q I will show you, I showed you Exhibit 2
13 where you thanked him for the documents, Mr. Flynn.
14 Do you think there is anything here or anything that
15 you haven't explained of the presentation that
16 Montgomery made to the CIA. Did Mr. Flynn then send
17 you other documents purportedly showing
18 Mr. Montgomery's presentation to the CIA?
19 A I think he just gave us all of the court
20 records. And I don't recall. I don't even recall
21 this conversation frankly.
22 Q I will show you what I will ask the court
23 reporter to mark as Exhibit 3. Is this your book, Pay
24 Any Price.
25 A Is it. Is it okay if I go to the bathroom?
123
1 MS. HANDMAN: Sure. We are taking about a
2 ten minute break.
3 MR. KLAYMAN: You need ten minutes to go to
4 the bathroom.
5 THE VIDEOGRAPHER: We are going off of the
6 record. The time is 11:25.
7 (Risen Deposition Exhibit No. 3 was marked
8 for identification)
9 THE VIDEOGRAPHER: Going back on the record.
10 The time is 11:31.
11 BY MR. KLAYMAN:
12 Q Mr. Risen, you just testified that
13 Mr. Montgomery never gave you any documents to back up
14 his story. Correct?
15 A Which story?
16 Q The story about mass surveillance on
17 American citizens and --
18 A Right.19 Q Judges and whatnot?
20 A Right.
21 Q And you are aware that the reason he didn't
22 give it as he claimed was he didn't want to give you
23 classified information. Correct?
24 MS. HANDMAN: Objection.
25 THE WITNESS: I'm not sure. He kept saying
124
1 he was going to then he wouldn't do it. And he gave
2 different reasons for it it seems like.
3 BY MR. KLAYMAN:
4 Q Are you saying he never said to you I can't
5 give it to you because it is classified?
6 A I think sometimes he -- well, it was more
7 about I have -- you know, they would sanction me or
8 they would come after me. But some other times it
9 seemed it wasn't clear whether that was always the
10 reason or not.
11 Q And you say that based your reporting in
12 part on stories written by others such Aram Roston of
13 Playboy magazine who wrote a story, The Man Who Conned
14 the Pentagon?
15 A Yeah. That was written long before our
16 story.
17 Q I will show you what is will ask the court
18 reporter the mark as Exhibit 4.
19 (Risen Deposition Exhibit No. 4 was marked
20 for identification)
21 BY MR. KLAYMAN:
22 Q Yes, that is the Playboy story by Mr. Aram
23 Roston. That is the story that you are referring to
24 in Playboy magazine?
25 A It looks like it, yes.
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Exhibit 4
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8/31/2015 Gmail - Fwd: Montgomery v. Risen, No. 1:15-cv-20782-JEM
https://mail.google.com/mail/u/0/?ui=2&ik=e027b36078&view=pt&search=inbox&msg=14f8570627f8507b&siml=14f8570627f8507b
Fwd: Montgomery v. Risen, No. 1:15-cv-20782-JEM
Ratner, Micah Date: Mon, Aug 3, 2015 at 2:27 PMSubject: Montgomery v. Risen, No. 1:15-cv-20782-JEMTo: "Larry Klayman ([email protected])" Cc: "Handman, Laura" , "[email protected] " ,"[email protected]"
Mr. Klayman
Under the scheduling order, experts witness summaries and reports are due today. The attached identifies anexpert to you today under Fed. R. Civ. P. 26(a)(2) who may test the relevant software to determine whether itworks as the Amended Complaint asserts.
Of course, you objected to producing the software. No expert can test it until after it’s been turned over to us. Asyou know, unless we come to some resolution in the meet and confer, Judge Goodman will decide whether youmust produce the software.
If and when your client produces a testable version of the relevant software, we will proceed to provide expertsummaries and reports, if any, within a reasonable time after your client’s production.
Regards,
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: [email protected] | Website: www.dwt.com
Anchor age | Bellevue | Los Ang ele s | New York | Portla nd | San Fra ncisco | Sea ttle | Shang hai | Washington, D.C
Defendants' Disclosure Under Rule 26(a)(2)(A).pdf 6K
Case 1:15-cv-20782-JEM Document 125-4 Entered on FLSD Docket 09/04/2015 Page 2 of 2
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:micahratner@dwtlcomhttp://www.dwt.com/mailto:[email protected]:micahratner@dwtlcommailto:[email protected]:[email protected]:[email protected]://mail.google.com/mail/u/0/?ui=2&ik=e027b36078&view=att&th=14f8570627f8507b&attid=0.1&disp=attd&realattid=7b4f75e4198b3b85_0.1&safe=1&zwmailto:[email protected]:[email protected]://www.dwt.com/mailto:[email protected]:[email protected]
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Exhibit 5
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-20782-MARTINEZ/GOODMAN
DENNIS MONTGOMERY,
Plaintiff,
v.
JAMES RISEN et al.,
Defendants.
________________________/
DEFENDANTS’ EXPERT DISCLOSURE UNDER RULE 26(a)(2)(A)
Under Federal Rule of Civil Procedure 26(a)(2)(A), Defendants hereby disclose the
identity of the following witness who Defendants may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705:
Stephen R. BissellBissell Group LLC
19855 NW Nestucca Dr.Portland, Oregon 97229
(503) 939-9392
Dated: August 3, 2015 Respectfully submitted,
s/Micah J. Ratner
Sanford L. Bohrer
Florida Bar No. [email protected]
Brian W. Toth
Florida Bar No. 57708 [email protected]
HOLLAND & K NIGHT LLP
701 Brickell Avenue, Suite 3300
Miami, Florida 33131Telephone: (305) 374-8500
Fax: (305) 789-7799
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– and –
Laura R. Handman (admitted pro hac vice)
Micah J. Ratner (admitted pro hac vice)[email protected]
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Ave., NW, Suite 800Washington, D.C. 20006
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants
CERTIFICATE OF SERVICEI certify that on August 3, 2015, I served this document by email on all counsel of record.
s/Micah J. Ratner
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