montgomery v risen #96 | s.d.fla._1-15-cv-20782_96_p memo of law re 91

8/20/2019 Montgomery v Risen #96 | S.D.Fla._1-15-cv-20782_96_P Memo of Law re 91

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

DENNIS L. MONTGOMERY

Plaintiff,

v.

JAMES RISEN, ET AL.,

Defendants.

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

PLAINTIFF’S PRE-HEARING MEMORANDUM

Introduction

Under the Court’s July 20, 2015 Order [ECF No. 91], Plaintiff files this pre-hearing

memorandum on the discovery dispute in order to educate the Court on the issues that may arise

during the hearing of August 7, 2015.

In Defendants’ Notice of Legal Issues to Address in Their Pre-Hearing Memorandum

[ECF No. 92], they outline four (4) topics that they disingenuously assert Plaintiff produced

insufficiently in document production: (1) the failure to produce potentially classified

information; (2) information regarding Plaintiff’s domicile; (3) Plaintiff’s medical records; (4)

Plaintiff’s tax returns. Defendants’ again attempt to mislead this Court. It is a federal crime to

produce, transfer or review classified information, Defendants are fully briefed on and aware of

Plaintiff’s domicile over the past ten (10) years, Defendants are in possession of at least 92 pages

of medical records and have been provided an additional 5,641 more pages of medical records

by today, August 4, 2015. Defendants are also in possession of 263 pages of Plaintiff’s tax

Case 1:15-cv-20782-JEM Document 96 Entered on FLSD Docket 08/04/2015 Page 1 of 5


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returns. Indeed, Defendants have all of the information they disingenuously seek to have this

Court order over to them.

1.

Plaintiff Is Not Required to Produce Classified, Government Information

Plaintiff’s counsel is not aware whether or not Plaintiff has custody, possession or control of

classified information, but if Plaintiff does, it cannot be produced to Defendants pursuant to law.

Plaintiff, who has a severe brain aneurism and could barely speak or see during the period

leading up to production, did an admirable job at producing what he had that could be legally

produced and responded to.

2.

Plaintiff Provided His Domicile Information

Plaintiff is not withholding any information about his domicile.

3. Plaintiff Provided His Medical Information

Plaintiff provided all of the relevant medical information that is in his possession, custody

and control. Plaintiff had various doctor’s appointments in the last two weeks and those

documents will be provided as soon as they are available.

4.

Plaintiff Provided His Tax Returns

As Plaintiff’s counsel told Defendants’ counsel based on information from Plaintiff in a

telephone conversation various times, Plaintiff’s tax returns have been produced to the fullest.

Plaintiff is not in possession of tax returns from the years 2008-2014, and Defendants’ are well

aware of this. An IRS whistleblower complaint filed by Plaintiff asserts this. Specifically,

Plaintiff wrote:

IRS and FBI officials, in Reno Nevada retaliated against me and my family in

2007, by beginning and extensive IRS investigation into myself and my family.The investigating IRS officials have acknowledge using the information that was

collected by the FBI on the raid on my home (and offsite storage units) even

though they knew the raid was “illegal.” I provided the necessary informationregarding my finances to my attorneys. The US Government, under the SSP then



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sized all those finance documents from my attorneys, without even issuing a

search warrant. Without these documents, it makes it almost impossible to file tax

returns and defend myself against the IRS.

Plaintiff previously produced this document to Defendants and they are aware that Plaintiff

cannot produce tax documents from 2008 to 2015.

Conclusion

Defendants seek to create issues for tactical reasons, which largely do not exist. It is

telling that thus far, Plaintiff has produced 29,587 pages of documents, and Defendants produced

only about 4,000. Importantly, a hearing which Plaintiff will notice up in the future if the

Magistrate-Judge cannot hear the issue on August 7, 2015, concerns Plaintiff’s former legal

counsel Michael Flynn, Esq., having been induced to breach attorney client privileges and

confidences, and work product between Plaintiff, by the Defendants. In this regard, the

documents produced by Defendants in their initial disclosures “disclose” that Flynn turned over

20,000 documents likely containing attorney/client communications and work product, most of

which Defendants withheld and did not produce to Plaintiff. When questions were asked about

this secretion and spoliation of the documents at the disposition of James Risen on June 19,

2015, Defendants’ counsel largely refused to allow her client Risen to answer questions about

the non-produced documents and instead, through improper speaking objections, fed him

answers falsely suggesting that all documents had been provided to Plaintiff. Attached is the

portion of the relevant pages of the Risen deposition transcript. Exhibit 1.

In short, Plaintiff has been much more correct and forthcoming than Defendants. And,

Defendants’ Pre-Hearing Memorandum dishonestly fails to state that pursuant to the meet and

confer, which took place for several hours on two occasions in the last few weeks, most of the

issues have been resolved. Instead, Defendants seek to wage ad hominem attacks and impugn



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Plaintiff and his counsel for strategic reasons. The most severe example of this concerns the

alleged software, which Defendant suggests in his book “Pay Any Price,” is classified.

Accordingly, Defendants’ and their counsel’s receipt of this software would subject Plaintiff and

them to criminal liability. Defendants and their counsel are simply trying to create a “Catch 22,”

particularly since Defendant Risen was forced to admit at deposition that his libelous and

slanderous published statements were not based on any classified information he received from

government sources. Thus, the issue of the software is irrelevant as Defendant simply made up

and concocted his defamatory publications to sell his book. Defendants cannot be permitted to

have it both ways.

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For the foregoing reasons, and as will be argued on August 7, 2015, Defendants’ Motion

to Compel should be denied.

Dated: August 4, 2015

Respectfully submitted,

/s/ Larry Klayman

Klayman Law Firm

FL Bar No. 2462207050 W Palmetto Park Rd.

Suite 15-287

Boca Raton, FL 33433(310) 595-0800

[email protected]

Attorney for Plaintiff

1 Plaintiff reserves the right to supplement this pleading to aid the Magistrate-Judge prior to the

hearing of August 7 2015.



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 4th day of August 2015, a true and correct copy of theforegoing was served via email and U.S. Mail upon the following:

Sanford Lewis BohrerBrian Toth

Holland & 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 96-1 Entered on FLSD Docket 08/04/2015 Page 1 of 7


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montgomery v risen #96 | s.d.fla._1-15-cv-20782_96_p memo of law re 91

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