montgomery v risen # 125 | s.d.fla._1-15-cv-20782_125 klayman objection to order

8/20/2019 Montgomery v Risen # 125 | S.D.fla._1-15-Cv-20782_125 Klayman Objection to Order

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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

Case 1:15-cv-20782-JEM Document 125 Entered on FLSD Docket 09/04/2015 Page 1 of 10


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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]


Laura R. Handman

Micah Ratner

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

Washington D.C. 20006-3401



Attorneys for Defendants

/s/ Larry Klayman

Larry Klayman, Esq.



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Exhibit 1

Case 1:15-cv-20782-JEM Document 125-1 Entered on FLSD Docket 09/04/2015 Page 1 of 5


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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.

Case 1:15-cv-20782-JEM Document 107 Entered on FLSD Docket 08/22/2015 Page 1 of 4Case 1:15-cv-20782-JEM Document 125-1 Entered on FLSD Docket 09/04/2015 Page 2 of 5


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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.


shall, by

September

4,

2015,

produce

all

medical

records

that

have

not

yet

been

produced from April 2014 through the present.


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.


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.


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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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.


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.


shall, by

September

4,

2015,

produce

all

medical

records

that

have

not

yet

been

produced from April 2014 through the present.


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.


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.


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 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


15 (202) 973-4224

16

17 MICAH RATNER, ESQUIRE

18 DAVIS WRIGHT TREMAINE, LLP19 1919 Pennsylvania Avenue, NW

20 Suite 800


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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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.


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?


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 --



26/31



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?


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?


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?


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.



27/31

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


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]


29/31

Exhibit 5



30/31



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



31/31

– and –

Laura R. Handman (admitted pro hac vice)

[email protected]

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
