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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.
_____________________________/

PLAINTIFFS OBJECTION TO PORTIONS OF

MAGISTRATE JUDGES ORDER OF AUGUST 22, 2015
Pursuant to Federal Rules of Civil Procedure (FRCP) 59 and 72, which govern a
district courts consideration of a partys objection to a magistrate judges order, Plaintiff Dennis
Montgomery (Plaintiff) hereby respectfully objects to Magistrate Judge Jonathan Goodmans
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 2 of 10

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 FBIs 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 awardwinning 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 Plaintiffs alleged software. Plaintiff objected to this request for production of

Case 1:15-cv-20782-JEM Document 125 Entered on FLSD Docket 09/04/2015 Page 3 of 10

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 selfdescribed right of continued access to
nonclassified information (in relation to his turning over the subject software to
the FBI) and produce the software to Defendants. To accomplish this, Plaintiffs
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
nonclassified 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.
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 Article
and New York Times Article. (Book at 53.) The Book added Montgomerys
denials to the narrative, obtained after Risen interviewed him. (Id. at 33-34, 37,
51, 53).
1

Plaintiffs counsel has never seen, been in possession of, or come across any classified
information.
3

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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, Montgomerys partner in the software
venture, eTreppid, and its employees. The Book expressly states that, according
to court documents that include his statements to the FBI, Montgomerys
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 which
an eTreppid employee Sloan Venables began to suspect Montgomerys 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 actually
telling 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 eTreppids 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 Montgomerys alleged technology wasnt
real. (Id.) (emphasis added). The Chapter correctly summarizes FBI reports
contained in court records showing that the technology wasnt 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
Montgomerys software was fake. The Book explains that, [a]t the time of the
Christmas 2003 scare, John Brennan was the head of the Terrorist Threat
Integration Center, which meant that Brennans office was responsible for
circulating Montgomerys fabricated intelligence to officials in the highest
reaches of the Bush administration. (Book at 47.) The Book states that, [i]n
2013, 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 his
role in the intelligence communitys 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 Nevada
who 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 have
reviewed show, that CIA officials derided the contractors information, but
nonetheless, you passed it to the White House and alert levels ended up being
raised unnecessarily. (Id.) (emphasis added). Accurately quoting Brennans
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 Montgomerys data
in analytic products; and (4) confirmed that Montgomerys 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 hidden
cell 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 officers
standing in another room, according to court documents. (Id.) (emphasis added).
Thus, [t]he military officers were convinced that Montgomerys computer
software had amazingly detected and recognized the bazooka in Montgomerys
hands. (Id.) The Book again includes Montgomerys 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 Risens
book but are now stating that they need classified software.
Further, Defendant Risens 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 reportprepared
and signed by the witnessif 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 experts
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 Plaintiffs 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 Courts 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 Goodmans 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 Goodmans 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, Plaintiffs objection should respectfully be granted.
Dated: September 4, 2015

Respectfully Submitted,

/s/ Larry Klayman

Larry 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 of
the foregoing was served via CM/ECF upon the following:
Sanford Lewis Bohrer
Brian Toth
Holland & Knight, LLP
Suite 3000
701 Brickell Ave
Miami, FL 33131
Email: sbohrer@hklaw.com
Email: brian.toth@hklaw.com
Laura R. Handman
Micah Ratner
Davis Wright Tremaine LLP
1919 Pennsylvania Ave., N.W., Suite 800
Washington D.C. 20006-3401
Email: laurahandman@dwt.com
Email: MicahRatner@dwt.com
Attorneys for Defendants

/s/ Larry Klayman

Larry Klayman, Esq.

10

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Exhibit 1

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UNITEDSTATESDISTRICTCOURT
SOUTHERNDISTRICTOFFLORIDA
MIAMIDIVISION

CASENO.1520782CIVMARTINEZ/GOODMAN

DENNISL.MONTGOMERY,

Plaintiff,

v.

JAMESRISEN,etal.,

Defendants.
______________________________/
POSTDISCOVERYHEARINGORDER
The parties noticed [ECF Nos. 90; 104] numerous discovery issues for hearing
before the Undersigned. Additionally, the Undersigned granted [ECF No. 91] the
partiesrequesttobriefcertainissuesbeforethehearing.Thepartiesfiledmemoranda
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
UndersignedORDEREDthefollowing:

1)

ConcerningDefendantsRequestforProduction21 toPlaintiff,Plaintiffs

objection is overruled. Plaintiff shall, by August 28, 2015, produce the bank records
indicating the location of the bank where Plaintiffs social security payments for
disability are directly deposited. Plaintiff may redact the bank records, but the

If any party appeals this Order to the District Court, then the transcript of the
hearingwillneedtobeordered,asitoutlinestheUndersignedsreasoning.

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unredacted portions must disclose the location of the bank and confirm that this is
wherethedepositsaremade.

2)

Concerning Defendants Request for Production 52 to Plaintiff, Plaintiff

shall,bySeptember4,2015,produceallresponsivedocumentsfrom2003tothepresent
that hehasinhis custodyorcontrol,including, but not limitedto,bankrecords,1099
forms,W2forms,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
producedfromApril2014throughthepresent.

4)

Concerning Defendants Request for Production 9 to Plaintiff, Plaintiff

shall,byAugust28,2015,advisedefensecounseloftheBatesnumberofthedocument
thatwassupposedlyturnedoverinresponsetothisrequest.Ifthatdocumentwasnot
turnedoveralready,thenPlaintiffshallproducethatdocumentbyAugust28,2015.

5)

Concerning Defendants Request for Production 7 to Plaintiff, Plaintiff

shall, by August 31, 2015, turn over all documents concerning this request, which
wouldnowincludedocumentsrelatedtothedisclosureandproductionofthesubject
softwaretotheFBI.

6)

Concerning Defendants Request for Production 8 to Plaintiff, Plaintiff

shall, by September 4, 2015, use his selfdescribed right of continued access to non
classified information (in relation to his turning over the subject software to the FBI)
2

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andproducethesoftwaretoDefendants.Toaccomplishthis,Plaintiffscounselshall,by
August 26, 2015, send a letter to FBI General Counsel James A. Baker and Assistant
UnitedStatesAttorneyDeborahCurtis,toadvisetheseattorneysthatPlaintiffhasbeen
orderedbythisCourttoproducethesubjectsoftwareandwasspecificallydirectedto
use his right of continued access to nonclassified information to obtain the original
software(oracopyofit)fromtheFBI.Plaintiffshallcopydefensecounselonthisletter
and,byAugust27,2015,shallfiletheletterunderaNoticeofFilingontherecordinthis
case.

7)

Concerning Plaintiffs request for the 20,000 pages of documents

referenced by Eric Lichtblau in the relevant email, Defendant James Risen shall, by
August28,2015,fileanaffidavitorswornstatementunequivocallystatingwhetherhe
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.Ifhedoesknowthecurrentlocation,thenheshallprovidethelocation.

DONEANDORDEREDinChambers,atMiami,Florida,August22,2015.

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Copiesfurnishedto:
TheHonorableJoseE.Martinez
Allcounselofrecord

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Exhibit 2

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UNITEDSTATESDISTRICTCOURT
SOUTHERNDISTRICTOFFLORIDA
MIAMIDIVISION

CASENO.1520782CIVMARTINEZ/GOODMAN

DENNISL.MONTGOMERY,

Plaintiff,

v.

JAMESRISEN,etal.,

Defendants.
______________________________/
POSTDISCOVERYHEARINGORDER
The parties noticed [ECF Nos. 90; 104] numerous discovery issues for hearing
before the Undersigned. Additionally, the Undersigned granted [ECF No. 91] the
partiesrequesttobriefcertainissuesbeforethehearing.Thepartiesfiledmemoranda
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
UndersignedORDEREDthefollowing:

1)

ConcerningDefendantsRequestforProduction21 toPlaintiff,Plaintiffs

objection is overruled. Plaintiff shall, by August 28, 2015, produce the bank records
indicating the location of the bank where Plaintiffs social security payments for
disability are directly deposited. Plaintiff may redact the bank records, but the

If any party appeals this Order to the District Court, then the transcript of the
hearingwillneedtobeordered,asitoutlinestheUndersignedsreasoning.

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unredacted portions must disclose the location of the bank and confirm that this is
wherethedepositsaremade.

2)

Concerning Defendants Request for Production 52 to Plaintiff, Plaintiff

shall,bySeptember4,2015,produceallresponsivedocumentsfrom2003tothepresent
that hehasinhis custodyorcontrol,including, but not limitedto,bankrecords,1099
forms,W2forms,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
producedfromApril2014throughthepresent.

4)

Concerning Defendants Request for Production 9 to Plaintiff, Plaintiff

shall,byAugust28,2015,advisedefensecounseloftheBatesnumberofthedocument
thatwassupposedlyturnedoverinresponsetothisrequest.Ifthatdocumentwasnot
turnedoveralready,thenPlaintiffshallproducethatdocumentbyAugust28,2015.

5)

Concerning Defendants Request for Production 7 to Plaintiff, Plaintiff

shall, by August 31, 2015, turn over all documents concerning this request, which
wouldnowincludedocumentsrelatedtothedisclosureandproductionofthesubject
softwaretotheFBI.

6)

Concerning Defendants Request for Production 8 to Plaintiff, Plaintiff

shall, by September 4, 2015, use his selfdescribed right of continued access to non
classified information (in relation to his turning over the subject software to the FBI)
2

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andproducethesoftwaretoDefendants.Toaccomplishthis,Plaintiffscounselshall,by
August 26, 2015, send a letter to FBI General Counsel James A. Baker and Assistant
UnitedStatesAttorneyDeborahCurtis,toadvisetheseattorneysthatPlaintiffhasbeen
orderedbythisCourttoproducethesubjectsoftwareandwasspecificallydirectedto
use his right of continued access to nonclassified information to obtain the original
software(oracopyofit)fromtheFBI.Plaintiffshallcopydefensecounselonthisletter
and,byAugust27,2015,shallfiletheletterunderaNoticeofFilingontherecordinthis
case.

7)

Concerning Plaintiffs request for the 20,000 pages of documents

referenced by Eric Lichtblau in the relevant email, Defendant James Risen shall, by
August28,2015,fileanaffidavitorswornstatementunequivocallystatingwhetherhe
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.Ifhedoesknowthecurrentlocation,thenheshallprovidethelocation.

DONEANDORDEREDinChambers,atMiami,Florida,August22,2015.

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Copiesfurnishedto:
TheHonorableJoseE.Martinez
Allcounselofrecord

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Exhibit 3

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Deposition
JAMES RISEN
Conducted
on June 19, 2015
1 (Pages 1 to 4)
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

3
1
2

-------------------------------X
)
DENNIS MONTGOMERY,
)
)
Plaintiff,
)
) Case No.:
v
) 15-cv-20782
)
JAMES RISEN, HOUGHTON MIFFLIN )
HARCOURT PUBLISHING CO.,
)
HOUGHTON MIFFLIN HARCOURT )
COMPANY ,
)
)
Defendant.
)
)
-------------------------------X

APPEARANCES
ON BEHALF OF PLAINTIFF DENNIS MONTGOMERY:

LARRY KLAYMAN,ESQUIRE

2020 Pennsylvania Avenue, NW

Suite 800

Washington, DC 20006

(310) 595-0800

ON BEHALF OF DEFENDANT HOUGHTON MIFFLIN HARCOURT

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

TRANSCRIPT Deposition of
JAMES RISEN
WASHINGTON, D C
Friday, June 19, 2015
9:02 a.m.
Job No.: 85828
Pages: 1 - 407
Reported by: Donna Marie Lewis, RPR, CSR

17

MICAH RATNER, ESQUIRE

18

DAVIS WRIGHT TREMAINE, LLP

19

1919 Pennsylvania Avenue, NW

20

Suite 800

21

Washington, D C 20006

22

(202) 973-4223

23

ALSO PRESENT:

24

ANTHONY FIELDS, VIDEOGRAPHER

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Transcript of deposition of JAMES

RISEN, held at the offices of:
DAVIS WRIGHT TREMAINE, LLP
1919 Pennsylvania Avenue NW
Suite 800
Washington, D C 20006
(202) 973-4200
Pursuant to re-Notice before Donna Marie
Lewis, RPR, CSR, Notary Public of and for the District
of Columbia.

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INDEX
WITNESS:
JAMES RISEN
EXAMINATION BY:
By Mr. Klayman

PAGE
6

EXHIBITS
EXHIBITS:
DESCRIPTION
PAGE
No. 1 Email
47
No. 2 Email dated 9/23/11
99
No. 3 Book, Pay Any Price
123
No. 4 Playboy Article
124
No. 5 Notes
147
No. 6 New York Times Article
164
No. 7 Email dated 10/5/12
176
No. 8 Contract with Houghton Mifflin
191
No. 9 Declaration
203
No. 10 Amended Complaint
211
No. 11 Declaration of Dennis Montgomery
229
No. 12 Article from 2011, Bates No. DEFS002587 254
No. 13 Bates DEFS002528 thru 2530
312
No. 14 Bates DEFS004140 thru 4147
360
No. 15 Bates DEFS003992 thru DEFS004003
362
No. 16 Bates DEFS000419 thru DEFS000424
363
No. 17 Bates DEFS003882
379

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Case 1:15-cv-20782-JEM Document

125-3of Entered
on FLSD
Docket 09/04/2015 Page 3 of 4
Deposition
JAMES RISEN
Conducted
on June 19, 2015
28 (Pages 109 to 112)
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MS. HANDMAN: And Mr. Risen was on

assignment.
MR. KLAYMAN: I will prove what was said
when -MS. HANDMAN: And I was out of the country
the week that you wanted to take the deposition, that
you had noticed the deposition.
MR. KLAYMAN: I have emails to the contrary.
MS. HANDMAN: You do not.
MR. KLAYMAN: They'll be produced within the
motion as part of the pattern of conduct.
BY MR. KLAYMAN:
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

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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.
Q So with regard to your reporting -- excuse
me, with regard to what you wrote about Mr. Montgomery
in your book, Pay Any Price, you didn't have any
documents that weren't otherwise public. Correct?
MS. HANDMAN: Objection.
THE WITNESS: I have to review that. I
can't -- I think I have given -- I don't recall
anything that I haven't turned over.
BY MR. KLAYMAN:
Q Okay. I think you answered the question,
I'm just laying the foundation. However, when
Mr. Montgomery wanted to give you a story about the
mass collection of metadata and other intelligence
information on virtually the entire American
population by the CIA which you demanded documents
from him or you wouldn't report to story?
A He made vague assertions that -- and never
provided any details. He kept saying that I can't

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to having reviewed a whole series of CIA documents

that corroborated the media reports, the many media
reports that had been published prior to our story and
Pay Any Price that showed that people at the CIA
believed that this was a bogus intelligence operation.
Q You never asked any of your government
sources for backup documentation with regard to
Mr. Montgomery. Did you?
MS. HANDMAN: Objection.
THE WITNESS: Yes, of course. We always
ask. But trying to get classified documents is
difficult for a reporter.
MS. HANDMAN: Objection.
THE WITNESS: So it always -- you know, it
is not something that you always get.
BY MR. KLAYMAN:
Q And you didn't get them here with -A As I said, we got lots of government public
records from government cases, including the FBI, the
whole investigation, Mr. Heraldson's phone calls
with -- or phone call with Mr. Montgomery on behalf of
the FBI. So there is lots of documentation.
Q But the only thing that you got -A Interviews with eTreppid employees with the
FBI, things like --

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really tell you what I'm talking about because I would

get in trouble. And so he never provided any details
at all, even in conversations. And then I said well,
okay, provide some evidence and I will write a story.
I think he has done with other reporters as well as
many other people. And I think -- you know, so I kept
saying, you provide me the evidence and I will write
the story. And he was so vague about what he was
talking about that there was never any -- it was never
clear exactly what the story was. He kept talking
about possible hacking on behalf of the government but
he was never providing much detail.
Q And neither you nor Mr. Lichtblau or anyone
else sought to confirm his story by mentioning it to
any of the government people that you communicated
with concerning Mr. Montgomery?
A No. I don't think that is accurate. I
think we did. I think I tried to talk to other people
about it, but there was -- there was so little
specifics that he had provided that -- in fact no
specifics.
Q But there is nothing in any of the documents
that you produced to show or even suggest that, is
there?
A You know, I --

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Case 1:15-cv-20782-JEM Document

125-3of Entered
on FLSD
Docket 09/04/2015 Page 4 of 4
Deposition
JAMES RISEN
Conducted
on June 19, 2015
31 (Pages 121 to 124)
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drive?
A As I said I don't recall a thumb drive. I
recall going through the documents and getting the
documents from Eric. I don't remember exactly how I
got them.
Q So Eric lied about the thumb drive?
MS. HANDMAN: Objection.
THE WITNESS: I don't know. He may have had
a thumb drive and then transferred them to his
computer and then given them to me. I don't remember.
Somehow I got them and he had them.
BY MR. KLAYMAN:
Q Well, other than the public documents that
you claim that you had access to these are the only
other documents that you got with regard to
Montgomery?
MS. HANDMAN: Objection.
THE WITNESS: What are you referring to?
BY MR. KLAYMAN:
Q The thumb drive of 20,000 pages or whatever
form they came?
A That was the court records, the court
documents. It was not 20,000 as far as I can tell.
Q Now it says here in Exhibit 1 that
Mr. Lichtblau spent eight hours with the source, the

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MS. HANDMAN: Sure. We are taking about a

ten minute break.
MR. KLAYMAN: You need ten minutes to go to
the bathroom.
THE VIDEOGRAPHER: We are going off of the
record. The time is 11:25.
(Risen Deposition Exhibit No. 3 was marked
for identification)
THE VIDEOGRAPHER: Going back on the record.
The time is 11:31.
BY MR. KLAYMAN:
Q Mr. Risen, you just testified that
Mr. Montgomery never gave you any documents to back up
his story. Correct?
A Which story?
Q The story about mass surveillance on
American citizens and -A Right.
Q Judges and whatnot?
A Right.
Q And you are aware that the reason he didn't
give it as he claimed was he didn't want to give you
classified information. Correct?
MS. HANDMAN: Objection.
THE WITNESS: I'm not sure. He kept saying

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source being Mike Flynn?

A Yeah, I believe it was Flynn.
Q Did he travel to Mike Flynn's office?
A I don't remember frankly where they met.
Q Who paid for his travel expenses?
A I'm sure it was the New York Times.
Q Where is Flynn's office?
A It is in California.
Q Where in California?
A I don't remember where it was at that time.
I didn't go see him so I don't know.
Q I will show you, I showed you Exhibit 2
where you thanked him for the documents, Mr. Flynn.
Do you think there is anything here or anything that
you haven't explained of the presentation that
Montgomery made to the CIA. Did Mr. Flynn then send
you other documents purportedly showing
Mr. Montgomery's presentation to the CIA?
A I think he just gave us all of the court
records. And I don't recall. I don't even recall
this conversation frankly.
Q I will show you what I will ask the court
reporter to mark as Exhibit 3. Is this your book, Pay
Any Price.
A Is it. Is it okay if I go to the bathroom?

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he was going to then he wouldn't do it. And he gave

different reasons for it it seems like.
BY MR. KLAYMAN:
Q Are you saying he never said to you I can't
give it to you because it is classified?
A I think sometimes he -- well, it was more
about I have -- you know, they would sanction me or
they would come after me. But some other times it
seemed it wasn't clear whether that was always the
reason or not.
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.
Q I will show you what is will ask the court
reporter the mark as Exhibit 4.
(Risen Deposition Exhibit No. 4 was marked
for identification)
BY MR. KLAYMAN:
Q Yes, that is the Playboy story by Mr. Aram
Roston. That is the story that you are referring to
in Playboy magazine?
A It looks like it, yes.

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

Exhibit 4

8/31/2015
Case

GmailFwd:Montgomeryv.Risen,No.1:15cv20782JEM
1:15-cv-20782-JEM Document
125-4 Entered on FLSD Docket 09/04/2015 Page 2 of 2

Fwd:Montgomeryv.Risen,No.1:15cv20782JEM

Ratner,Micah<MicahRatner@dwt.com>
Date:Mon,Aug3,2015at2:27PM
Subject:Montgomeryv.Risen,No.1:15cv20782JEM
To:"LarryKlayman(leklayman@gmail.com)"<leklayman@gmail.com>
Cc:"Handman,Laura"<laurahandman@dwt.com>,"Sandy.Bohrer@hklaw.com"<Sandy.Bohrer@hklaw.com>,
"Brian.Toth@hklaw.com"<Brian.Toth@hklaw.com>

Mr.Klayman

Undertheschedulingorder,expertswitnesssummariesandreportsareduetoday.Theattachedidentifiesan
experttoyoutodayunderFed.R.Civ.P.26(a)(2)whomaytesttherelevantsoftwaretodeterminewhetherit
worksastheAmendedComplaintasserts.

Ofcourse,youobjectedtoproducingthesoftware.Noexpertcantestituntilafteritsbeenturnedovertous.As
youknow,unlesswecometosomeresolutioninthemeetandconfer,JudgeGoodmanwilldecidewhetheryou
mustproducethesoftware.

Ifandwhenyourclientproducesatestableversionoftherelevantsoftware,wewillproceedtoprovideexpert
summariesandreports,ifany,withinareasonabletimeafteryourclientsproduction.

Regards,
Micah

MicahRatner|DavisWrightTremaineLLP
1919PennsylvaniaAvenueNW,Suite800|Washington,DC200063401
Tel:2029734223|Fax:2029734423
Email:micahratner@dwt.com|Website:www.dwt.com
Anchorage|Bellevue|LosAngeles|NewYork|Portland|SanFrancisco|Seattle|Shanghai|Washington,D.C

Defendants'DisclosureUnderRule26(a)(2)(A).pdf
6K

https://mail.google.com/mail/u/0/?ui=2&ik=e027b36078&view=pt&search=inbox&msg=14f8570627f8507b&siml=14f8570627f8507b

1/1

Case 1:15-cv-20782-JEM Document 125-5 Entered on FLSD Docket 09/04/2015 Page 1 of 3

Exhibit 5

Case 1:15-cv-20782-JEM Document 125-5 Entered on FLSD Docket 09/04/2015 Page 2 of 3

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. Bissell
Bissell 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. 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

Case 1:15-cv-20782-JEM Document 125-5 Entered on FLSD Docket 09/04/2015 Page 3 of 3

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 August 3, 2015, I served this document by email on all counsel of record.
s/Micah J. Ratner