Montgomery V Risen # 110 Aug 21 Transcript As Attached ECF 111-1

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Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 2 of 99
IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
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MIAMI DIVISION
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CASE NO.:
15-cv-20782-JEM
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DENNIS L. MONTGOMERY,
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Plaintiff, )
v.
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JAMES RISEN, et al.,
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Defendants. )
_________________________/
August 21, 2015
Pages 1 - 97
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DISCOVERY HEARING PROCEEDINGS
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BEFORE THE HONORABLE JONATHAN GOODMAN

UNITED STATES, MAGISTRATE JUDGE
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APPEARANCES:
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On behalf of the Plaintiff:
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KLAYMAN LAW FIRM

2520 Coral Way,
Suite 2027,
Miami, FL 33145
BY: LARRY E. KLAYMAN, ESQ.
BY: DINA JAMES, PARALEGAL
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APPEARANCES CONTINUED:
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On behalf of the Defendant:
Davis Wright & Tremaine

1919 Pennsylvania Avenue, NW
Suite 800,
Washington, DC 20006
BY: LAURA R. HANDMAN, ESQ.
BY: BRIAN W. TOTH, ESQ.
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Transcribed By:
Bonnie Joy Lewis, R.P.R.

7001 SW 13 Street
Pembroke Pines, FL 33023
954-985-8875
caselawrptg@gmail.com
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(Thereupon, the following proceeding was held:)
THE COURTROOM DEPUTY:
U.S. District Court for the
Southern District of Florida is now in session.
Jonathan Goodman presiding; Case Number 15-27082-cv-Martinez.
Dennis Montgomery versus James Risen, et al.
The Honorable
THE COURT:
Let's have appearances, starting first with the
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Good afternoon, folks.
Plaintiff.
MR. KLAYMAN:
Larry Klayman, counsel for Mr.
Montgomery, with my paralegal, Miss Dina James; D-I-N-A.
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MS. HANDMAN:
Laura Handman, counsel for the
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defendant, with Davis Wright Tremaine.
And with me --
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MR. TOTH:
Brian Toth for the defense as well.
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THE COURT:
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So I am starting a hearing now and it is five
Thank you, folks.
Please be seated.
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minutes before the scheduled 3:30 start, but we may need to
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take a break in the middle to deal with a criminal matter that
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was left over from the 1:30 calendar.
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long to address that matter once the Marshal Service brings in
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the missing defendant.
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already, but it has not happened.
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It should not take too
I was expecting that that would happen
So we are here on a discovery hearing.
And I know
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from a filing that Mr. Klayman made this afternoon with another
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motion, which is not before me, a response to extend certain
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deadlines, but in that response filed today, Mr. Klayman gave
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notice that Mr. Montgomery's deposition was taken yesterday,
correct?
MS. HANDMAN:
THE COURT:
Yes, Your Honor.
And that was a full seven-hour
deposition?
MS. HANDMAN:
THE COURT:
Yes, Your Honor.
And I would assume that the deposition
was taken in Miami and that would explain why all the
out-of-town lawyers are here today, correct?
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MR. KLAYMAN:
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THE COURT:
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Correct, Your Honor.
So I understand that there are several
discovery issues.
And I have to tell you that I read all the papers
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and you all submitted a memorandum and I read Mr. Klayman's
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submission, albeit not one directly in response to this
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discovery issue, but in response to the Defendant's request to
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extend certain deadlines.
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And I am summarizing here and basically, in this
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submission today that Mr. Klayman took the position that I have
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provided all the discovery.
The Defendants know that I have
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provided all the discovery.
They knew it at the time that they
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filed their discovery hearing.
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And in effect, Mr. Klayman is accusing the
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Defendants of acting in bad faith of conjuring up a non
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existence illusory discovery dispute because according to Mr.
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Klayman, my God, his client has turned over massive amounts of
material and the Defendants are simply harassing him.
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Is that a fair statement, Mr. Klayman, of your

filings today?
MR. KLAYMAN:
It is not quite that strong, Your
Honor.
It may be strong from time to time.
the information that is required.
seven hours yesterday.
and pain.
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We provided all
There was a deposition for
Mr. Montgomery was in great discomfort
And some day perhaps you might want to look at the
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video of that and he sat for seven hours.
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to ask followup questions for the documents that we provided.
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And they were able
Let me give you one example.
Income tax returns
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where they wanted to know why certain years were not available
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and he answered those questions with regard to why they had
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been not available.
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satisfied.
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We believe that everything has been
The only issue that has been outstanding here is
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the issue of Mr. Montgomery's software.
We believe that that
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software is likely classified.
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Montgomery has, for more than a year, has been coming forward
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as a whistleblower to the NSA, the CIA, the Department of
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Defense, the FBI, and the Department of Justice and other
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agencies, including Congress in trying to provide information
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to the FBI so they could look at it.
For the last year, Mr.
Because one of the things
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that he has that is not part of this lawsuit, is what appears
to be unconstitutional surveillance on hundreds of millions of
American citizens, including federal judges.
So that has been turned over to the FBI.
The FBI
is determining whether or not the software is classified or
not, but in any event, what has been alleged in the pleadings.
And I have copies by the Defendants in their Motion to Dismiss
that they have said to this Court this case can be dismissed
because all you need to rely on is public information and that
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was available in court documents and in testimony before
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Congress and you don't need any information from the
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government.
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And in fact, when I deposed Mr. Risen a while
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back, he confirmed that he did not have access to government
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classified information.
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because they have said it right up front that they are not
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relying on any government information.
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So it's a nonissue, the software,
And of course, we now know -- it has been in the
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news lately and we are not trying to sensationalize anything
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here, but the sensitivity of turning classified information
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over to a private source.
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difficulty these days for that and you just can't do it.
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the FBI has that and is analyzing the nature of that
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information.
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THE COURT:
Even Mrs. Clinton is in some
The FBI has the software?
So
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MR. KLAYMAN:
THE COURT:
MR. KLAYMAN:
They have the software, yes.
How did they get it?

Because Mr. Montgomery provided it
to them.
THE COURT:
When?
MR. KLAYMAN:
He provided it to them three days
ago.
provided them a lot of other information too, which they are
looking at because it is classified information and he is a
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It has been in the process to provide that to them and he
whistleblower.
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THE COURT:
Folks, excuse me, I think I saw the
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Defendant there.
So I am going to ask you to step back,
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please, and allow the Defendant to come in and we will let the
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prosecutor and the Public Defender's Office take their places.
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MR. Klayman:
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THE COURT:
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MR. KLAYMAN:
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anybody's way.
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(Recess.)
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You can leave them there, but it's up
to you.
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Leave our papers here?
THE COURT:
I just put them here so it is not in
Michael, do you need to call this case
back on the record or we are already there?

We're back on the record in
Case Number 15-CV-20782.

THE COURT:
Mr. Klayman, you were explaining to me
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sort of an update on what has been happening with the
discovery.
software which you and your client have repeatedly asserted in
this case is likely confidential, or possibly confidential, or
something like that as if.
And in particular, you were telling me about the
MR. KLAYMAN:
THE COURT:
Correct.
And you did mention to me three days
ago either you had or Mr. Montgomery submitted the software so
the FBI so the FBI could confirm one way or the other if the
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software contained classified information; is that correct?
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MR. KLAYMAN:
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THE COURT:
That is correct.
And so when this software was turned
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over three days ago, did either you, or Mr. Montgomery, keep a
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copy, or you just gave the software?
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MR. KLAYMAN:
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THE COURT:
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MR. KLAYMAN:
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THE COURT:
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besides the software?
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analyzing the software?
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No copies?
It was just the software and
relative to this case the software is included.
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We just gave it to them.
And what else did you turn over
For example, were there reports
MR. KLAYMAN:
it myself.
I don't know because I never look at
I don't want to look at it.

THE COURT:
It's not my province.
Do you have a feel generally by way of
a description of what was turned over, other than the software
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itself?
You told me that the software was only part of the
materials turned over.
MR. KLAYMAN:
THE COURT:
MR. KLAYMAN:
I'm sorry, Your Honor.
What other category of -Generally speaking, and this is a
matter of some confidentiality as well because there's an
investigation going on by the FBI, but generally speaking, the
part that is public is that my client, Mr. Montgomery, who was
obviously written up in Mr. Risen's book as being an effective
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franchise of the ability to analyze data, this encrypted data
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of terrorists doing business, so to speak, all the over the
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world in al jazeera and otherwise.
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He has information that government agencies, much
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like happened with NSA and Edward Snowden and others have been
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doing massive surveillance on American citizens, including
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federal judges, magistrates, members of Congress and others and
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operating illegally here in the United States, CIA.
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THE COURT:
question, sir.
I think I did a bad job of asking my
So I am going to try it again --
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MR. KLAYMAN:
Okay.
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THE COURT:
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I am not asking you to launch into an argument,
-- with my question.
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which quite frankly, is what you are doing.
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lot of rhetoric.
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I do not need a
Here is my question, Mr. Klayman.
MR. KLAYMAN:
Sure.
Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 1110
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THE COURT:
What else besides the software,
itself, was turned over to the FBI three days ago?

I'm following up on your comment that the software
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was only part of the information turned over to the FBI.
naturally, in my mind I am saying to myself, gee, I wonder what
else was turned over to the FBI beside the software.
That's the information I am looking for.
So
Tell me
in factual format the description of the other information
turned over besides the software.
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Please do it without
rhetoric and argument.
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MR. KLAYMAN:
I was trying to be as precise as
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possible based on what is publically known at this time.
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basically, is evidence of mass surveillance of American
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citizens.
THE COURT:
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MR. KLAYMAN:
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It includes credit card numbers,
banking information, names of millions of Americans.

THE COURT:
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That's really not what I was looking
for.
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for.
That is still not what I am looking
Let me do a better job.

Simply sort of a summary conclusion.
So is the
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type of other information e-mails, memos, phone records,
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regular old printed documents, data basis?
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You just told me it is evidence of mass surveillance.
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It,
MR. KLAYMAN:
I mean, what is it?
It would include --
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THE COURT:
MR. KLAYMAN:
What exactly was turned over?
listed.
THE COURT:
MR. KLAYMAN:
And anything else?

Not that I know of.
I have never
looked at the information.
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It would include what you just
THE COURT:
And who actually turned it over, you
or Mr. Montgomery?
MR. KLAYMAN:
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THE COURT:
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MR. KLAYMAN:
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THE COURT:
Mr. Montgomery.
Did you participate?

I was present.
We are going to really have a long
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hearing if you continue to clip me off before I finish my
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question.
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was going to ask, but you really need to let me finish asking
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the question.
Maybe you were going to correctly guess at what I
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MR. KLAYMAN:
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THE COURT:
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Sure.
So did you participate for the
arrangements for turning over this material?

Because I am guessing, just a guess, that Mr.
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Montgomery didn't just show up at the FBI headquarters in
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Washington, D.C., knock on the door and say, here, probably
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something had to happen before that.
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MR. KLAYMAN:
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THE COURT:
Am I right?
Correct.
Okay.
So tell me about the
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arrangements that led up to the turning over of this material
three days ago.

MR. KLAYMAN:
The arrangements were made through a
federal Judge in Washington, D.C. Lamberth, U.S. Court for the
District of Columbia who had contacted the FBI because of
information that Mr. Montgomery had.
And meetings were held with the general counsel of
the FBI working under the aegis of FBI director James Comey.
And consequently, as a result of that, the information was
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turned over.
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THE COURT:
All right.
And how was it that a
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district court judge in Washington, D.C. was involved in this
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situation?
Is there a lawsuit pending there?
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MR. KLAYMAN:
There is no lawsuit.
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I approached that judge because I know that judge
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and I have had cases in front of that judge.
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an extremely reputable and honest person with great integrity.
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THE COURT:
So when you say you approached the
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judge, did you file something in court?
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in his chambers?
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I know him to be
Did you just show up
I mean, how did this happen?
MR. KLAYMAN:
Long before this case was filed, we
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approached the judge in Washington and said how could we get
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this information to the government because Mr. Montgomery is a
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whistleblower and no one has wanted to listen to him so far.
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THE COURT:
And so when you made this approach to
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the judge, and the name of the judge again is?
MR. KLAYMAN:
THE COURT:
Royce C. Lamberth.
Right.
And so, before this lawsuit
was filed against Mr. Risen and other defendants, you contacted
Judge Lamberth?
MR. KLAYMAN:
THE COURT:
form of a pleading?
was that done?
Correct.
And when you did that was it in the
Did you just show up in his chambers?
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MR. KLAYMAN:
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THE COURT:
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MR. KLAYMAN:
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THE COURT:
How
We met with him in chambers.
In chambers?
Yes, with Mr. Montgomery.
And then, am I correct in
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understanding that at some point, Judge Lamberth ordered you to
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turn over that material to the FBI?
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MR. KLAYMAN:
No.
We asked him for his assistance
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on how we could come forward with that information because we
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thought it should be in the government's hands being that it is
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highly sensitive, that it is classified and even he was not
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able to look at it.
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I didn't look at it.
Nobody looked at it, but we
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wanted to come forward and because Mr. Montgomery, long before
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he became my client had been trying, as I mentioned earlier, to
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come forward as a whistleblower to various government agencies
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and nobody wanted to listen to him.
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THE COURT:
approximately when?
So this lawsuit was filed
Let me see.
Maybe I have it on my --
THE COURT:
THE COURT:
Of this year?
Yes.
So when was it that you approached
Judge Lamberth?
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February 24th, Your Honor.
MR. KLAYMAN:
I could go back and check.
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THE COURT:
October of last year, approximately.

I do not have the exact date.
All right.
And so what, ultimately,
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happened with Judge Lamberth, which led to the turning over of
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the software and the information to the FBI three days ago?
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You told me that he did not enter an order, correct?
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MR. KLAYMAN:
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THE COURT:
Correct.
Okay.
So what did he do?
Did he pat
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you on the back and say, Mr. Klayman, sounds like a good idea
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to me, go to it?
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document?
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good idea for you to receive this information?
Did he issue some kind of an ex parte
Did he contact the FBI and say I think it will be a
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MR. KLAYMAN:
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THE COURT:
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No.
What exactly happened?
Because I have
to tell you that it sounds somewhat unorthodox to me.

MR. KLAYMAN:
never been done before.
It is unorthodox because this has
We have never been in this situation.
I trust Judge Lamberth and I had a number of cases
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before him in the 1990s and after that was all over I got to
know him better.
consequently, he arranged because we needed to get this to the
highest levels of the FBI and also to the highest levels
potentially, of the Justice Department, this information.
So he arranged for meetings with the general
I didn't have any cases with him.
And
counsel of the FBI, James Baker, who then facilitated bringing
in agents, FBI agents, to acquire this information to collect
it and that's how it occurred.
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THE COURT:
All right.
And what, ultimately, led
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to the turning over three days ago of the information?
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FBI general counsel contact you or Mr. Montgomery and say,
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okay, now is the day, turn it over?
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turn it over?
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to but you were not required to?
Did they direct you to
Did they give you the opportunity if you wanted
MR. KLAYMAN:
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Did the
How exactly did that unfold?
Well, what unfolded, we had the
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meetings.
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works directly under the director James Comey, facilitated
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bringing in a team of agents to turn it over.
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U.S. attorney of the District of Columbia to supervise that and
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her name is Deborah Curtis.
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And the general counsel of the FBI James Baker, who
And assistant
So we've had -- we turned it over to both the FBI

and the Justice Department.
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THE COURT:
Jointly?
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MR. KLAYMAN:
Jointly.
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THE COURT:
Two copies, one for the FBI and one
for the Justice Department?
MR. KLAYMAN:
THE COURT:
Correct.
And was this done actually at the FBI
headquarters in Washington, or did some agent visit your client
at his home or residence, or some other place, and it was
turned over there?
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MR. KLAYMAN:
in Miami, in Miramar.
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It was done at FBI headquarters here
THE COURT:
And you and Mr. Montgomery went there
in person?
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MR. KLAYMAN:
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THE COURT:
Correct.
Along with Miss James.
And before this happened, given that
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the Defendants in this case had been repeatedly seeking this
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particular software and there was litigation over the
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discoverability and litigation and arguments raised about the
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secret nature, or alleged secret nature, or classified nature
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of this material, did you give the Defendants in this case
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advanced notice that you were going to be turning over this
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material to the FBI?
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MR. KLAYMAN:
We did not because this was not
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something that was done with the confidentiality, the cloak of
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confidentiality, but we did arrange, Your Honor, with the FBI
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that we do have continuing access.
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continuing access to documentation which is not classified, or
Mr. Montgomery has
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otherwise sensitive and privileged with regard to the
government.
So if there is anything that we need from what was
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turned over, it is still accessible to Mr. Montgomery.
THE COURT:
So I mean, this arrangement that you
just explained to me, especially this continuing access, is
there a written document outlining Mr. Montgomery's rights to
this information, a memorandum of understanding, an agreement,
a contract, something?
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MR. KLAYMAN:
There is a document that was
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produced.
It's a letter prepared by the U.S. attorney on
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behalf of the Justice Department, which says that, in effect,
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Mr. Montgomery has immunity for turning this over in terms of
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the documentation.
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THE COURT:
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than saying he has continuing access.

MR. KLAYMAN:
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do have.
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classified.
Okay.
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So he has, according to you,
continuing access to nonclassified information?

MR. KLAYMAN:
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Well, this is an agreement that we
It could be for anything that is not
THE COURT:
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Well, that is a little bit different
Correct, which has yet to be
determined.
THE COURT:
I understand, but he wouldn't have
continuing access to classified information.
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MR. KLAYMAN:
I would assume that's the case.
don't think anybody should have access to that.

THE COURT:
And how long did you anticipate it
will take for the FBI to determine one way or the other to
whether any of the information, including the software is, in
fact, classified?
MR. KLAYMAN:
Before I answer that, let me add one
other thing, which I think is important, is that Mr. Montgomery
will have a top secret clearance, an SAP clearance, S-A-P and I
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believe that he still has top secret clearance and it was never
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revoked.
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In order to revoke it you have to have a hearing
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and no such hearing ever took place.
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to that yesterday at deposition.
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deposition, when he was giving answers, to be careful not to
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reveal anything which may belong to the government.
I instructed him at the
And what was the last question, Your Honor?
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And in fact, he testified
apologize.
THE COURT:
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It might have been the previous
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question.
I had asked you is there some document that
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memorializes Mr. Montgomery's continuing access to
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nonclassified information which was turned over to the FBI?
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Your response was really a nonresponse.
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MR. KLAYMAN:
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THE COURT:
Yes, there is --
You have to let me finish.
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MR. KLAYMAN:
THE COURT:
I'm sorry.
Your response was he has immunity
pursuant to a letter drafted by the assistant U.S. attorney.
And my response was, well, there is a difference between
immunity for turning over information and having continuing
access.
So the question is, is there a document, a letter,
a memo, or anything else memorializing your comment to me that
Mr. Montgomery has continuing access to nonclassified
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information, which was turned over to the FBI?
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MR. KLAYMAN:
There is no such document, but there
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is an agreement between us which was entered into during the
13
meetings if that would be the case.
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And it is my understanding, to answer your
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question, because now I remembered what your last question was
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is that the FBI is moving with great speed on this because Mr.
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Montgomery is seriously ill and he may not live.
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one of the reasons, Your Honor, we oppose any postponement.
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may not live at the time of any trial.

THE COURT:
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And that's
He
He may not be alive.
So I understand the general response
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that the FBI will be moving with all due diligence, with
22
alacrity, with efficiency, et cetera, but those are just
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general adjectives.
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talking about a week, a month, six months, two years?
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you think?
It doesn't really give me an idea.
Are we
What do
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MR. KLAYMAN:
Well we have to get some feedback on
that because they haven't had an opportunity to go through it
yet.
There are a number of hard drives that were turned over.
THE COURT:
And is this afternoon, right here in
court, the first time that the Defense is learning that Mr.
Montgomery turned over the software that they've been seeking
for months to the FBI, or did they know about it before this
hearing?
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MR. KLAYMAN:
He testified about it yesterday, Mr.
Montgomery.
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THE COURT:
Well, I'm guessing that counsel may
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have asked some of the same questions that I asked and perhaps
13
differently and perhaps additional ones.
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All right.
So let me just hear from the Defense
for a minute.
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MR. KLAYMAN:
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THE COURT:
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MR. KLAYMAN:
May I just add one last thing here?
Yes.
If possible.
The reason that the
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software is not relevant to this matter -- and I have a copy of
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the Motions to Dismiss that are still pending by the Defendant
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if Your Honor would like a copy of it -- is that they argued
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that they don't need government information for this case to be
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decided.
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upon information that was out in the public domain in testimony
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before Congress, or prior articles written by Playboy Magazine
That everything that Mr. Risen published was based
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-- if you can believe that -- and others about Mr. Montgomery,
but they didn't have access to government information because,
you know, we made reference to the fact that he may have had
unauthorized access to classified information and they denied
that.
And when I took Mr. Risen's deposition -- and I
also have the deposition pages and I can cite them to Your
Honor -- he confirmed that he did not have access to classified
information.
So consequently, it's not relevant what is on
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this software, which is believed to be classified because he
11
never relied on that and doesn't want to rely on that.
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As Your Honor may know, Mr. Risen was involved in
13
a very controversial case with an individual by the name of
14
Jeffery Sterling, who was indicted by the Justice Department
15
for having one classified e-mail.
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he got to the edge of being indicted himself for having access
17
to that.
And Mr. Risen was, himself,
The government did not proceed with that case,
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presumably because they did not want to reveal the classified
20
nature of what he had gotten from Mr. Sterling.
21
dropped the charges just in the last few months.
So they
So Mr. Risen is very careful to say, at his
22
23
deposition, that he did not have access to classified
24
information.
25
at the testimony, it is clear that he did not and it is
He equivocated a lot, but in the end if you look
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1
confirmed by the Motion to Dismiss.
the Motion to Dismiss, the Defendants are arguing that there's
no need for classified information, Your Honor.
Martinez, you can dismiss this based upon a privilege that this
was all done from public information that has already been
produced.
is not even relevant.
In the first ten pages of
Judge
That's the basis of Chapter Two of this book.
THE COURT:
So it
Is there claims in this defamation
case that Mr. Risen, in his book, published the point that your
10
client basically bamboozled the government by selling defective
11
software?
12
13
Isn't that, basically, one of the main claims?

MR. KLAYMAN:
I wouldn't say that's the main
claim.
14
THE COURT:
That's one of the major claims?
15
MR. KLAYMAN:
16
THE COURT:
It's a claim.
Okay.
In order to defend against that
17
claim wouldn't the parties need to know whether the software in
18
fact worked or not?
19
case-in-chief or their defense case?
20
Isn't that a critical part either in your
MR. KLAYMAN:
That's not what they're resting
21
their defense case on.
22
said that this case should be decided, Your Honor.
23
And that's what I'm saying is that they
And they are unequivocal about that based on
24
testimony before Congress by individuals like Brennan of the
25
CIA with regard to other things that were available in other
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1
court documents and you don't even get to that point.
So what we believe, and Your Honor asked me the
question at the outset, we're accusing them of bad faith.
not accusing them of bad faith.
defense lawyers.
I'm accusing them of being
Defense lawyers, I was a defense lawyer myself,
civil and criminal.
Department and a defense lawyer at the same time.
break up AT&T.
10
I was a prosecutor for the Justice

I helped
So I know what complex litigation is about.
They're using this as a fulcrum, a wedge, to try
11
to get this case delayed.
12
am saying is that there is no need to delay the case.
13
is analyzing this right now.
14
discovery.
15
because the Defendant may be dead.
16
That is their intention.
And what I
The FBI
There is time to complete
And in any event, we can't put the trial off
We approached Judge Martinez on that very first
17
status conference months ago and that's why he set us so
18
quickly for trial.
19
saying they're doing their job as defense lawyers.
20
an ordinary case.
21
I'm
I am not accusing them of anything.
I am
This is not
It potentially is a case which involves, not in
22
part of the allegations of this case, but the other stuff that
23
Mr. Montgomery has deals with a massive breach of individual
24
privacy throughout the United States and that has nothing to do
25
with this case.
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THE COURT:
So let's assume that Mr. Risen based
his book only on public information.

If that published information included the
3
4
conclusion that the software is bogus and did not work, even if
he got that information publically, the key fact in the case
would be if that's truth was the software bogus or not?
So I do not really see whether it matters.
Whether or not the information that Mr. Risen relied upon is
public, or private, or confidential, or sensitive, or
10
classified.
11
defamation, Mr. Risen and the publishing company, created
12
defamation by falsely publishing the allegation that your
13
client sold bogus software, that did not work, to the
14
government.
15
One of the claims is that the Defense committed
And then, as part of your case-in-chief, to
16
demonstrate the falsity of that statement they have to prove
17
that the software, in fact, did work.
18
defense case whether or not it was their burden or not, they're
19
going to try to show that the software did not work.
20
that is still a relevant issue.
21
Explain to me why --
22
MR. KLAYMAN:
And as part of the
So to me
Based on the facts of this case,
23
Your Honor, that would respectfully not be a way that they
24
would go about defending themselves, I would think, and know.
25
One of the things that came out in deposition and in the
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documentation -- because we had produced already about over
40,000 documents to the Defendants.
THE COURT:
Excuse me for interrupting.
By the way, I am never, ever impressed by that
argument.
Judge, I produced 35,000 documents.
documents.
8
9
Lawyers tell me those things all the time.
They say
I produced a million
And my response is, so what?

If you produce 50,000 documents and you still have
45,000 documents that you have not produced, I am not
10
particularly impressed by the 50,000 number.
11
documents, but there's one document that you did not produce
12
and that is the smoking gun document.
13
impressed that you produced the 50,000 documents if you are
14
withholding the one most important document.
many documents --
17
MR. KLAYMAN:
18
THE COURT:
19
20
I am not particularly
So by way of background, you have to tell me how
15
16
There is 50,000
It's the quality.
That to me is not really a critical
point.
MR. KLAYMAN:
What i'm trying to say is my
21
understanding is from Mr. Montgomery that we have produced
22
everything except the software.
23
THE COURT:
I am going to hear from the Defense,
24
but I am going to say, Mr. Klayman, that the Defense is going
25
to, one hundred percent, disagree with you.
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MR. KLAYMAN:
THE COURT:
MR. KLAYMAN:
Of course.
I am going to tell you that right now.

Of course, but let me finish the
point, if I may?
THE COURT:
Sure.
MR. KLAYMAN:
During the course of Mr. Risen
writing the book, he contacted Mr. Montgomery and he said this
is what I am writing.
Do you want to comment?
This is in the deposition yesterday.
Of course it
10
is under seal, okay, but this part is not really confidential.
11
In any event, we're not going to claim that.
12
that he would not correct what he was writing and he would not
13
write it as Mr. Montgomery saw it, that he did not in any way
14
defraud the government, or do the greatest hoax in American
15
history.
16
And he demanded
That's in the book, okay.

And I might add that Mr. Montgomery is sick and
17
Mr. Montgomery really can't defend himself.
18
me legal fees.
19
use Mr. Montgomery as a launching pad for his book that the
20
government, as a whole, had misused all this money in the war
21
against terror.
22
He is not paying
And we believe that Risen knew that he could
Mr. Risen does not like the government.
23
not like George W. Bush.
24
that the government has wasted all this money.
25
was, of course, the focus .
He did
He was selling this book on the basis

Mr. Montgomery
So he says to Mr. Montgomery,
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either you give me classified information or I'm going to write
this.
classified information.
And Mr. Montgomery says to him, I can't give you
That would be a crime.
Risen was doing the same thing that he was doing
to Jeffery Sterling.
Montgomery to give him classified information and Mr.
Montgomery did the right thing.
8
9
In effect, he was extorting Mr.
I might add that Mr. Montgomery, you know, has

done the right thing here.
10
Snowden.
11
Government.
12
Department lawyer.
13
responsibility, not just to courts, but also to the American
14
people to come forward with this.
15
He is here.
He is not in Russia like Edward
He is cooperating with the U.S.
And I can appreciate that as a former Justice

I feel that there is a great ethical
The bottom line is this, and this is why I say
16
this, is that Mr. Risen, in effect, acknowledged that he did
17
not have classified information and did not rely on it and he
18
made this stuff up out of whole cloth.
19
Montgomery was going to break the law and commit a crime that
20
he was going to defame my client.
21
THE COURT:
And unless Mr.
Mr. Klayman, I am going to take a
22
guess that the Defense is going to take defensive issue with
23
your allegations that in this deposition Mr. Risen admitted to,
24
quote, making this up out of whole cloth.
25
MR. KLAYMAN:
No, that's my characterization.
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THE COURT:
that in his deposition.
I think you just said Risen admitted
MR. KLAYMAN:
THE COURT:
Effectively, I said.
Well, that's how I interpreted it.
And as soon as I heard that I said, oh, my gosh, that would be
astounding and basically --
MR. KLAYMAN:
Mr. Risen is a highly intelligent
man and no one doubts that, but Mr. Risen has gotten himself
into trouble in the past.
10
As I said, he almost got indicted recently over
11
the Jeffery Sterling affair.
12
to be turning over classified information to him on threat that
13
if he didn't this is what Risen was going to publish.
14
And Mr. Montgomery was not going
So it is our position, our firm position, that
15
this information is not relevant.
I am not accusing Defense
16
counsel of bad faith or doing what Defense counsel do.
17
know, regrettably --
18
THE COURT:
19
It is what lawyers do.
You
Not just Defense counsel.

They make arguments
20
whether you are a Plaintiff's lawyer or a Defense lawyer.
21
have seen Plaintiff's lawyers take plenty of disingenuous
22
positions.
23
less disingenuous than Plaintiff's lawyers.
24
25
And I think Defense lawyers are not any more or any
I mean, American lawyers, when they do what they

do because they think they need to do it to zealously advocate
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1
on behalf of their client, but Mr. Klayman, you've spoken for
quite a long time and I am going to give you more time, but I
am going to shift to the Defense.
Have a seat.
MR. KLAYMAN:
THE COURT:
MS. HANDMAN:
8
9
Sure.
First of all, Counsel -Yes, Your Honor.
Nice to see you in
person.
THE COURT:
All right.
Thanks for that.
10
So please explain to me whether the software is
11
relevant and explain to Mr. Klayman that the software is not
12
relevant because Mr. Risen said that he did not rely at all for
13
his book upon classified information, but instead relied only
14
on things in the public domain.
15
16
So first, armed with that fact, is he contending

that the software is relevant; yes or no?
17
MS. HANDMAN:
18
THE COURT:
19
MS. HANDMAN:
Yes, it is critically relevant.
Why?
Because as Your Honor correctly
20
pointed out, our Motion to Dismiss did not address one critical
21
defense, which is that Plaintiff has the burden, actually, of
22
showing that what we wrote was substantially false.
23
And you are absolutely right, Your Honor, that the
24
crux of the claim is that he claims that we falsely said that
25
he was selling bogus software to the United States.
And that
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1
is the claim, as Mr. Klayman quite correctly says, all this
deal about mass surveillance and the NSA, that's another case
that Mr. Klayman has.
It has nothing to do with this case.
And the software, we have hired a software expert
to analyze whether this software, the software that was part of
that in 2003, the company he was with in 2003.
subsequently, in 2006 and 2007 and 2008, whether that software
works or not.
And then,
And we found out for the first time yesterday that
10
he had given it to the FBI.
11
we've heard today about Judge Lamberth, who I know well, too,
12
and going to the FBI, et cetera.
13
He did not give us this story that
He just said that he turned it over to the FBI and
14
he did not keep a copy of his own software.
15
that he knew we were seeking the software.
16
to say the least.
17
all, the subject of the prior proceedings in Nevada.
18
Notwithstanding
That was shocking,
And this is software that is also, first of
THE COURT:
Right.
I read that opinion where the
19
court concluded that the software was not classified and
20
ordered Mr. Montgomery to turn it over.
21
do it, the judge held him in contempt and he, ultimately,
22
entered into a consent and later filed for bankruptcy.
23
aware of that history.
24
25
MS. HANDMAN:
And when he refused to
So I am
And that's even Mr. Klayman recounts
in the case in the supplemental filing that we made on Monday
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1
in the Ninth Circuit.
of Nevada has already ruled that the data documents,
intellectual property, tangible objects, and personal property
at issue in this case.
Arpaio, belonged to Dennis Montgomery.
classified.
7
8
He says that the Court for the District
THE COURT:
This was the case before Arpaio, Judge

None of it was
I don't think it is Arpaio.
I think
it is --
MS. HANDMAN:
It is Judge Snow who made -- and
10
Judge Snow ordered that some of the documents that Mr.
11
Montgomery had given to the Maricopa Sheriff's Department be
12
handed over to the Department of Justice.
13
We have notified, as Mr. Klayman knows and as we
14
put in our papers, we notified the lawyers in the DOJ who
15
participated in the Nevada proceedings that entered into the
16
protective order in the Nevada proceedings that have
17
participated in the Arpaio proceedings.

And we notified them about what we had requested
18
19
and what was the Plaintiffs' response saying it was classified,
20
that this hearing was going on, that the deposition was
21
yesterday.
22
government can assert the state's secrets privileged.
And they have chosen not to appear and only the
And I don't even know where to begin on some of
23
24
what Mr. Klayman has said about Mr. Risen.
25
very clear.
I just want to be
He was never under indictment or indictment
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1
threatened.
He was part of a weak investigative prosecution
and the government had talked about seeking his testimony.
had asserted the reporter's privilege.
ultimately, did not call him as a witness.
to a head, but there was never any question of criminality by
Mr. Risen in that case.
THE COURT:
practicality.
and information that you're seeking.

MS. HANDMAN:
11
THE COURT:
Right.
But right now, let's just talk about
the software.
13
MS. HANDMAN:
14
THE COURT:
16
So it didn't come
I know there are other categories of documents
10
15
The government,
Let's talk for a minute about
12
He
Correct.
Because that, to me, seems to be a
critical part of the case.

Mr. Montgomery, as part of his case-in-chief, we
17
need to demonstrate the substantial falsity of the claim in the
18
book that the software did not work.
19
And although you might not be under a burden to
20
prove it the other way, as Defense lawyers you certainly would
21
want to find out factually whether the software worked or not,
22
whether it was bogus or not.
23
So I agree with you that the software is highly
24
relevant for the case.
All right.
Fine, but now we have this
25
significant development that the software is no longer in Mr.
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99
1
Montgomery's possession.
Apparently, according to this process, which has been under way
for many, many months before the lawsuit was even filed and did
not keep a copy.
He turned it over to the FBI.
So this comes up a lot of times in discovery
disputes, not in this particular way, but the issue is I cannot
get blood out of a stone.
turn over the software, can I?
I cannot now order Mr. Montgomery to

Because he does not have it.
So what would you have me do now, vis-a-vis this
10
software that your expert wanted to evaluate to see whether it
11
worked or not?
12
MS. HANDMAN:
Well, first of all, it is unclear to
13
me why this software would be part of the whistleblower case
14
about government surveillance, which even Mr. Klayman says is
15
not part of our case.

But assuming, taking at face value what Mr.
16
17
Montgomery has said and Mr. Klayman has said today, first of
18
all, Mr. Klayman said that Mr. Montgomery retains access to the
19
software.
THE COURT:
20
Actually, what he said was, he retains
21
access to the nonclassified software, but that agreement is
22
nowhere memorialized in writing and is some sort of oral
23
understanding that he has with either the AUSA or the Justice
24
Department, but that is his understanding of his client's
25
rights.
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MS. HANDMAN:
I mean, this is his software.
So it
is unclear to me exactly why it would involve any classified
information to begin with.
But even so, you know, we could proceed and we are
planning to proceed on a number of issues to obtain from the
government what Mr. Montgomery has refused to produce.
For example, he pleads over and over in
declarations and amended complaints that there are government
tests validating his software.
10
He has not produced those and
that, obviously, is also critical to this whole situation.
11
And yes, we relied on that.
What we relied on was
12
filed judicial pleadings that had interviews with former
13
employees that said that he had these tests in front of the
14
government in order to pretend that the software, the visual
15
recognition software, worked.
16
THE COURT:
I'm sorry, Counsel.
17
You are sort of doing what Mr. Klayman did.
18
MS. HANDMAN:
19
THE COURT:
I apologize.
You are kind of launching into
20
argument and rhetoric and you are not merely addressing my
21
question.
So let me focus your attention on this.
22
MS. HANDMAN:
23
THE COURT:
Yes.
What relief would you like me to give
24
you now, vis-a-vis, the software?
25
you have been asking for it.
I know you want it.
I know
I know you want your expert to
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1
evaluate it.
So in effect, although in my cases you cannot file
a Motion to Compel.
You simply file a discovery hearing
notice, but in reality you are seeking an order compelling the
production.
MS. HANDMAN:
THE COURT:
Correct.
The problem is based on what we just
heard, and apparently based on Mr. Montgomery's testimony
yesterday, that he no longer has the software.
10
So I am sitting up here saying, I can only be
11
asked to provide certain relief.
So tell me what you would
12
like me to do.
13
you have me order Mr. Montgomery to produce the software
14
knowing that he does not have it and it is in the possession of
15
the FBI?
If you had your druthers, your wish list, would
Do you want me to enter an order requiring the FBI
16
17
to turn it over to you?
I mean, tell me, practically speaking,
18
are what do you want me to do?

MS. HANDMAN:
19
Well, first of all, I would
20
initially suggest that you do order Mr. Montgomery to produce
21
the software.
22
THE COURT:
That's sort of a meaningless order.
23
MS. HANDMAN:
Well, except that he does have
24
access to have him seek access to his own software from the FBI
25
and produce it to us if indeed that is, in fact, what has
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1
happened.
Secondarily, you could ask us to notify or you
could order us to notify the people we have notified and tell
them about what is being said here.
THE COURT:
Which people is that?
MS. HANDMAN:
He said the two DOJ lawyers who have
been involved in past dealings with Mr. Montgomery in Nevada
and in Arizona.
THE COURT:
Are these the same government lawyers
10
who are involved in this Judge Lamberth arranged turnover of
11
software to the FBI?
12
It sounds like we are talking about a different
13
lawyer.
It sounds like Mr. Klayman was talking about a local
14
AUSA in the D.C. office of the U.S. Attorney's Office and not
15
to the two DOJ lawyers that appeared in Nevada.

MS. HANDMAN:
16
The DOJ lawyers that are in the
17
special programs branch of the DOJ and they have appeared in
18
the Arizona case and in the Nevada case.
19
for example, a deposition that Mr. Montgomery gave in one of
20
these litigations to ensure that classified information wasn't
21
revealed.
And they attended,
22
If you want to order us to notify them or the FBI
23
that this is part of this proceeding and we are seeking access
24
to it, I would be happy to do that.
25
notified them of the basic -- and I will tell you why this does
As I said, I have already
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1
come as something of a shock.
Mr. Klayman filed, in a lawsuit that he has
against the Obama Administration involving NSA surveillance a
notice before a different federal judge in D.C., Judge Leon,
asking him if Mr. Montgomery could come and appear and testify
in camera ex parte about the NSA surveillance.
This was filed after Mr. Klayman says he
approached Judge Lamberth.
So as far as I know, Judge Leon had
not ruled on that last I looked and Mr. Klayman may know if
10
there has been any further rulings.
11
Department did appear and opposed the request.
12
And in that the Justice
So there are DOJ lawyers already involved in some
13
of these aspects of this.
14
know, give them notice because as I said, the fact that he
15
turned over the only copy he had of his own software to the FBI
16
two days ago, three days ago, was news to us.
17
will be somewhat news to the Justice Department.

THE COURT:
18
19
to contact the DOJ.
20
right?
21
And I am happy to bring them, you
And I suspect it
Well, you don't need me to require you
You can certainly do that on your own,
MS. HANDMAN:
I can and I have and I will send
22
them this transcript.
But I do think, Your Honor, ordering Mr.
23
Montgomery to produce it because, honestly, I would be -- where
24
he had an obligation to retain a copy of his software while it
25
was under subpoena here, I think Your Honor should order it and
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1
order him to seek it from whoever he gave it over to.
So that would be my practical solution for that
and that is only just sort of the beginning of the questions, I
think, that are raised here.
THE COURT:
Let me interrupt for a minute.
So Mr. Klayman, if I were to enter an order
requiring Mr. Montgomery to take advantage of his right of
access to the materials that he turned over to the FBI, why
couldn't he simply say give me back my software, or give me a
10
copy of my software so I could produce it to the Defendants in
11
this lawsuit?
12
MR. KLAYMAN:
Notwithstanding my other arguments
13
that is something that could be done, Your Honor.
14
just correct the record here because there were misstatements
15
that were made, hopefully inadvertent.
16
But let me
Number one, the number one national security
17
lawyer in the United States for the Justice Department is the
18
person that Mr. Montgomery was dealing with, Deborah Curtis.
19
She has won every award at the Justice Department.
20
21
22
THE COURT:
Is she in the Justice Department or is
she at the U.S. Attorney's Office.

MR. KLAYMAN:
She's in the District of Columbia.
23
They, and the Eastern District of Virginia, handle most of the
24
terrorism cases in the United States.
25
Justice Department lawyer.
She's the number one
This guy, Mr. Gomez, is in the
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1
civil division, special proceedings branch.
specialty.
This is not his
Number two, Mr. Montgomery was dealing at the
3
4
upper reaches of the FBI, the director himself, James Comey,
who had the courage -- he's a very honest man as I am sure you
have read -- who had the courage to even tell George W. Bush
and then Attorney General Gonzalez that they couldn't engage in
wholesale Internet surveillance of all American citizens.
a very courageous FBI director and he's been dealing directly
10
-- Mr. Montgomery has been dealing directly with the FBI
11
director.
12
So this is inconsequential.
He's
At the outset of the
13
deposition yesterday, I believe for intimidation purposes, Miss
14
Handman gratuitously offered that she has been in touch with
15
Mr. Gomez of the Justice Department and this is really
16
complicated what happened and what is happening in Arizona.
17
And I don't think Your Honor probably wants to
18
hear all of it, but there is a federal judge out of there --
19
not of your caliber -- who is essentially out of control.
20
actually ordered Mr. Gomez to come in and get documentation
21
from Mr. Montgomery.
22
doesn't mean it isn't classified.
23
he wants to be named a justice.
24
25
And
He does own the software, but that

And consequently, frankly,
I did advise Miss Curtis of the civil litigation.

I was completely open with her as to what was going on, but the
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1
FBI is still going to need to determine and the Justice
Department whether it is classified.

And that is something that we want to do for
3
4
everybody.
important as he is, but we are here for the people of the
United States and the System of Justice.
We are not just here for Mr. Montgomery, as
THE COURT:
Correct me if I'm wrong, but didn't a
district judge in Nevada already conclude that this software is
not classified?
10
MR. KLAYMAN:
11
THE COURT:
12
MR. KLAYMAN:
13
THE COURT:
14
MR. KLAYMAN:
That decision, okay, was based --
First just answer my question.

I didn't read it that way.
You didn't?
No.
I read it that he, basically,
15
was giving the information back to Mr. Montgomery because those
16
Justice Department laws, including Mr. Gomez, had participated
17
in providing false affidavits to the court and they could not
18
prove up probable cause and that's the reason it was given
19
back.
20
But out of an abundance of caution, the FBI
21
obviously needs to take a look at this.
22
U.S. National Security.
23
THE COURT:
We cannot compromise
Mr. Klayman, let's take it a step at a
24
time because like many lawyers, you seem to have difficulty
25
answering a simple question with a yes or no.
You are not
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1
2
unique in that regard.
Many lawyers are like that.
So here is my first question that should either be
yes, no, or I don't know, for the answer.
enter a written order in which the judge said that the very
software at issue here is not classified; yes or no?
MR. KLAYMAN:
Honestly, I don't know.
Did the Nevada judge
I don't know.
What I do know is what I
told you is that the efforts to gain that information were
quashed because of false affidavits that were submitted by,
10
among others, with the participation of Raphael Gomez of the
11
Justice Department.
12
An illegal search and seizure was conducted on Mr.
13
Montgomery's house.
14
making that decision, I don't know.
15
So whether the judge erred or not in
THE COURT:
Let me ask Miss Handman because I
16
think you attached, as an exhibit to your papers, a copy of
17
this Nevada order.
18
19
Didn't the judge there say that the software was

not classified?
20
MS. HANDMAN:
Yes, Your Honor.
21
And indeed, and that's why he was able to order
22
and hold Mr. Montgomery in contempt for failing to produce it.
23
And again, Mr. Klayman, in the Ninth Circuit last week said --
24
cited the Nevada Court has already -- this is Roman v -- the
25
U.S. District Court for the District of Nevada has already
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ruled that, one, the data, documents, intellectual property,
tangible objects, and personal property at issue in this case
belong to Dennis Montgomery.
U.S. Government was required to --
THE COURT:
None of it is classified and the
Okay.
So Mr. Klayman, you just told
me no less than a minute and-a-half ago that you, quote, didn't
know, closed quote, if the district judge had designated this
material as classified information.
minute ago.
10
MR. KLAYMAN:
11
THE COURT:
You just said that to me a
The way I read --
Defense counsel just read from a
12
memorandum that you filed in which you specifically said that
13
the judge indicated the information was not classified.
14
How can you take two completely different
15
positions because it sounds to me like you are rapidly losing
16
credibility, Mr. Klayman.
17
one thing to me now and say the exact opposite in a memorandum.
18
Could you explain that to me, please?
19
MR. KLAYMAN:
I cannot imagine that you can say
Maybe what was written was written
20
by somebody else who wrote the brief.
Number one, I am not
21
casting blame.
22
didn't read it that way because there were a number of
23
decisions here.
I didn't write the brief, but number two, I
24
There was a magistrate that was issuing rulings.
25
It wasn't a circuit court and we don't know whether or not it
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is classified or not.
Nevada was just to come in and make an argument in terms of Mr.
Montgomery's ability to make an argument as to that
information.
But what we have been trying to do in
I don't know what's in it because I've never
looked at it.
misspoke and I will correct it, but I did not take that as a
definitive determination of whether it was classified because
no one has looked at it before.
10
Okay.
And if we misspoke there, then, we
MS. HANDMAN:
Your Honor, Mr. Klayman also filed
11
on his own behalf in Arizona on the same day the same language
12
in his own motion before Judge Snow.
13
I would say one other thing which we alluded to in
14
one of our footnotes in our filing.
15
the software we would be, we believe, entitled to either a
16
dismissal of the case, or at least an adverse inference, or a
17
factual finding that the software did, in fact, not work.
18
So that is the ultimate outcome, I think, if
19
indeed we don't have access to that software for whatever
20
reason, whether because there are no further copies or the
21
government won't give it to us.
22
If we are not able to get
That is the final solution, shall we say.
And in
23
my judgment, it ends the case.
And Mr. Klayman is well aware
24
of this happening in other liable suits that he has brought
25
where the presence of classified information resulted in
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2
dismissal.
So that, I think, if we don't -- I don't know that
we need to reach that at this point, but that is certainly a
possibility as the outcome here.
THE COURT:
Let me say this.
I am not at a discovery hearing that is simply
issuing a ruling, or entering a default against Mr. Montgomery,
or dismissing the case, or concluding that you are entitled to
an adverse inference, or even a rebuttable presumption.
10
If you want that kind of relief you are going to
11
need to proceed through a separate motion, either an
12
exfoliation motion, or a motion that you have been handcuffed
13
and you cannot adequately present your defense.
14
to do in that.
15
MS. HANDMAN:
You know what
Yes, I am not suggesting that this
16
is the time or place.
17
relief and, ultimately, that would be the relief if, indeed, we
18
don't have access.
19
not limited to the software.
20
I am just suggesting you would ask what
I would say that this discovery dispute is
THE COURT:
Let's shift to other categories.
21
let's do that.
22
can do today concerning the software.
23
So
I think we have pretty much exhausted what we
Mr. Montgomery no longer has it and you have asked
24
me, in any event, to enter an order requiring him to turn it
25
over which would, in effect, require him to contact the FBI and
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say give it back, or give me a copy.
And then, Mr. Klayman will respond in kind and I
have a feeling of what he is going to say, which is I cannot
turn it over -- Mr. Montgomery cannot turn it over -- because
we have to wait for the FBI to decide one way or the other if
it is classified.
That's your position, Mr. Klayman?
MR. KLAYMAN:
And what I said was that we did inform the
Correct.
10
assistant U.S. attorney, Deborah Curtis, of the civil
11
litigation.
12
they agreed to move quickly.
13
to do everything according to the law and that's important.
14
And just to correct what you said before, Your
15
Honor, with regard to decisions in Nevada there are varying
16
decisions all over the place here on the matter.
17
thing.
18
19
20
21
We informed her of the need to move quickly and
THE COURT:
And we informed them that we want
Is there a Nevada decision of any kind
concluding that this software is classified?

MR. KLAYMAN:
No one ever looked at the issue.
That wasn't litigated.
22
THE COURT:
23
MR. KLAYMAN:
24
back and look at these decisions also.
25
That's one
THE COURT:
Is there a -I don't know of one, but I will go
Mr. Klayman, what you do is you make a
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comment and, then, the implicit inference is, well, maybe there
is some Nevada decision out there going the other way.
I am talking about a particular order that the
Defense attached as an exhibit, which I read to prepare for
this hearing.
software is not classified.
And in that order it said this particular
Then, the Defense called my attention to written
memoranda that you and your organization had filed in which you
concede that the Nevada judge found that the software was not
10
classified.
11
Then, you told me something different here in
12
court this afternoon when you said you did not know one way or
13
the other if a Nevada judge ever said that it was not
14
classified.
15
Then, you tell me that maybe you misspoke.
Then,
16
you tell me that maybe some other lawyer prepared the memo and
17
you did not have a chance to read it.
18
And now, you are saying to me, well, there are
19
plenty of Nevada opinions out there suggesting the way I took
20
it, sir, suggesting, well, maybe some other Nevada opinion came
21
to a different conclusion that it is classified.
22
So my question is, as we sit here today, are you
23
aware of any Nevada opinion describing, or finding, or holding
24
that this software contains classified information; yes or no?
25
MR. KLAYMAN:
No, I am not aware of it.
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THE COURT:
Okay.
MR. KLAYMAN:
That is what I figured.
If I was all over the line, I
apologize, but what I was trying to say was no one knows
whether or not it does or it doesn't and that was written in a
brief by some other counsel that works with me.
that it should be potentially corrected because no one knows.
No one knows.
THE COURT:
MR. KLAYMAN:
10
THE COURT:
And I agree
Just so I am clear -Yes.
This lawyer that you have it out at
11
the nation's expert as classified information, Deborah Curtis,
12
just so I am clear, she's an assistant United States attorney
13
as opposed to a DOJ lawyer and main justice.
14
assistant United States attorney working in the United States
15
Attorney's Office for the District of Columbia; is that
16
correct?
17
MR. KLAYMAN:
Correct.
She's an
She's working underneath
18
an individual by the name of Mr. Malice.
19
criminal division.
He is chief of the
20
THE COURT:
21
MR. KLAYMAN:
22
THE COURT:
23
MR. KLAYMAN:
24
He is chief of the criminal division and she is
25
Mr. Malice?
M-A-L-I-C-E.
First name?
I don't remember the first name.
one of the number one -- if you just do a Google search, Your
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Honor -- experts in national security information.
THE COURT:
All right.
So what I hear you
representing to me is that in making the arrangements to turn
over this software and other materials to the FBI, you advised
AUSA Curtis about this civil litigation?
MR. KLAYMAN:
THE COURT:
Correct.
And we need for the FBI to proceed
quickly and make a determination one way or the other whether
this software is classified and you told her that?
10
MR. KLAYMAN:
11
THE COURT:
Correct.
And you also told her that in the
12
civil litigation the Defense had requested the software so that
13
their expert could examine it?
14
MR. KLAYMAN:
I told her that we wanted continued
15
access to this information because we have civil litigation
16
pending.
17
18
19
THE COURT:
That sounds to me like your way of
saying, no, you did not -MR. KLAYMAN:
No, I didn't specifically talk about
20
this matter, but we got an agreement that anything that is not
21
classified we have access to and that would include this.
22
THE COURT:
So let's go on to the next category
23
because I think we have exhausted, for now, the concept of the
24
software and there are a whole bunch of different categories.
25
Which one would you like to take next, Miss
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Handman?
MS. HANDMAN:
Well, actually, I wanted, as you
know we said there was more that we wanted to discuss that we
didn't brief and I think it's an overarching problem.
As you know, you have very specific rules that say
that you cannot respond, I think, by saying here is my
objection, notwithstanding objection, I am going to produce
what I think is relevant.
virtually every interrogatory and virtually every document
10
That was the consistent answer to
request.
11
THE COURT:
I read it.
12
There are more carved out exceptions and
13
qualifications than I have ever seen, Mr. Klayman, in your
14
interrogatory response.
My gosh, it was like a lawyer's opinion letter
15
16
where you cannot even figure out what they are saying.
17
we say this, but we reserve our right to supplement this by
18
saying this.
19
Well,
We do not mean to concede this other point.

It was, quite frankly, a remarkable series of
20
responses that I have never seen before.
21
exceptions, and caveats, and carve-outs, and qualifications.
22
My gosh.
There were some
It is hard to figure out what you are
23
objecting to and what you were turning over, but it is now
24
getting close to 5:00.
25
attention on the specifics.
And so, I really want to focus our

I understand that you are not
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happy with Mr. Klayman's general format of responding.
am not crazy about it either because, quite frankly, it
violates the discovery rules applicable in this case.
aware of that.
Let's move on to a different topic.
And I
I am
Income tax
returns, medical records, things like that.
The category that
you have pinpointed in your hearing notice and your memorandum.
Which ones would you like to take first?
MS. HANDMAN:
Well, let me say one more point, if
10
I might, Your Honor because of the format.
And what came
11
through loud and clear in the deposition yesterday and the
12
discovery they have produced because they have not produced all
13
of the documents that we have requested.
14
And for example -- and I will just give you one --
15
we asked for all communications relating to this topic with the
16
persons named in the initial disclosures by the parties.
17
of them was the person that Mr. Montgomery worked for, for more
18
than four years.
One
Out of that we got five e-mails.
We had from other sources other e-mails between
19
20
them that were critical e-mails that were not produced.
21
how would we know that?
22
responses.
23
move on to the other things.
And
We didn't have that based on the
And that was only one example, but I am happy to
24
Income tax --
25
THE COURT:
Excuse me.
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This, again, happens frequently in discovery
disputes.
One party asks the other party for a certain
category of documents.
of documents.
The response is paltry.
It's a couple
And the party who requested the documents already
has, in its possession, a lot of documents which they take from
other sources.
side is withholding documents and it is not producing it.
do we know?
10
11
And they say, aha, you see, Judge, the other

How
Because we have a lot of these other documents
ourselves from other sources.

And the simple answer may be -- I am not saying it
12
isn't here -- but it may be that the opposing party, the one
13
who is responsible for producing discovery in this case does
14
not have that material anymore for whatever reason.
15
So maybe Mr. Montgomery only has now, years later,
16
five documents.
Maybe you have found 50.
17
you do not believe him.
18
think he is intentionally withholding the other 45, or more
19
than 45, but it could be.
20
truth is that he may as of now only have five.
21
but that argument, while interesting, does not necessarily
22
carry the day for me because it only goes so far.
Maybe you are suspicious.
Who knows?
Do you see what I am saying?
24
MS. HANDMAN:
Yes.
Maybe
Maybe you
It could be, but the
23
25
All right.
I cannot say,
I mean, that's in part what
your rules are designed to flush out so we know is this all
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he's got or is he withholding anything?
So that's why I think
it is important that the format be adhered to, but let me go on
to the topics because --
THE COURT:
Sure.
MS. HANDMAN:
The issue of domicile, Mr. Montgomery's domicile
-- they are very important.
is critical on the threshold questions of whether there is
personal jurisdiction over Mr. Risen.
here.
10
11
THE COURT:
all discovery.
12
13
Whether venue is proper
Really, it is all relevant and it is
You do not need to persuade me of that.
MS. HANDMAN:
Well, here is what we learned
yesterday.
14
THE COURT:
Okay.
15
MS. HANDMAN:
That Mr. Montgomery has not been
16
here in Miami until Monday.
He is using a friend's apartment,
17
a room in a friend's apartment.
18
will pay rent as needed, but he hasn't paid any rent.
19
in Washington State.
The friend is there and he

He lives
20
As his lawyer represented just yesterday and last
21
week to the Court in Nevada, the criminal court in Nevada that
22
has postponed his appearances for prosecution in Nevada.
23
last week he said that he was too ill to travel to Nevada from
24
Washington State to appear in the Nevada criminal proceedings.
25
Just
Yet, he was able to come all the way across the
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1
country to Miami to pursue his own lawsuit and sit for seven
hours.
presented just the day before, his lawyers presented
information from a doctor saying he was too sick to travel.
I agree with Mr. Klayman, they were grueling.
And he
So this bears on both the medical records and on
the domicile.
with his friend saying he's trying to pursue this.
is looking for assisted living to move to.
of his stuff yet.
10
He says he has no lease.
No written document
He says he
He hasn't moved any
We are entitled to as much -- he won't produce any
11
-- I asked him directly.
He gets social security disability
12
insurance?
13
you have a bank account here in Miami?
14
CitiBank.
It's apparently deposited in his bank.
I said, do
I don't know.
It is
I don't know.
We are entitled to have that information.
15
That's
16
is one of the indicia of domicile because what he said in his
17
interrogatory, when asked where he is residing, he gave the
18
address of his friend where he came on Monday and is, you know,
19
using a room.
20
That is his residence.

And yet, he admitted in testimony that he has been
21
in Washington State now for years, frankly.
22
to be moving to Florida at some point, but he is clearly not
23
residing here.
24
25
And he may intend
So what we think he needs to be frank and fix the

interrogatory responses and, obviously, we will bring this to
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the attention of Judge Martinez so that he has additional
information to rule on this, but there are other kinds of
documentation of domicile that we would ask for.
has gotten a phone number here.
That kind of thing.
THE COURT:
Well, when did he get it?
And you are sort of mixing and
matching a couple of different topics.
medical records to the domicile.
He says he
You sort of added in
So right now I am a very linear compartmentalized
10
person.
I am plotting.
I go very slowly one issue at a time.
11
I am very difficult with multitasking.
12
person who can send text messages and listen to music and
13
upload a photograph on Instagram all at the same time.
I am not a 25-year-old
14
MS. HANDMAN:
I understand.
15
THE COURT:
16
So domicile, I agree you are entitled to all that
One step at a time.
17
information that you asked for.
It is relevant.
18
do not want to state for certain, Mr. Klayman's argument, but
19
my impressions from reading his papers is -- Mr. Klayman, you
20
will tell me if I am right or not -- I think Mr. Klayman takes
21
the position that we have turned over all responsive documents
22
concerning domicile.
23
Is that your position?
24
MR. KLAYMAN:
25
THE COURT:
I think and I
Correct.
So what more is it that you would like
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me to do?
He says he does not have it.
I know you don't
believe him.
and you secretly think that he really has documents.
think that?
I know you think that he is being disingenuous

Don't you
MS. HANDMAN:
I am not suggesting that.
What I am suggesting is that he refused to
produce, for example, bank records that would show whether he
has moved his bank account where the Social Security is
deposited to Florida.
10
That, the courts say, is one indicia of
domicile and we asked that and he has refused to --
11
THE COURT:
Stop.
12
Mr. Klayman, have you produced bank records to
13
reflect one way or the other the location of the bank where Mr.
14
Montgomery's Social Security deposits are directly deposited;
15
yes or no?
MR. KLAYMAN:
16
17
We have objected to that, Your
Honor.
THE COURT:
18
19
No.
That objection is overruled.
Produce
those documents.
20
MR. KLAYMAN:
May I add one thing?
21
Yesterday during the deposition because we took
22
the position that these things would become relevant, Your
23
Honor, I've been polite.
24
controversy.
25
Miss Handman had not provided correct information to this Court
I did not want to create a
One time in an earlier hearing, I mentioned how
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about Mr. Montgomery registering to vote.
She actually signed
a sworn declaration that he was not registered to vote.
that is blatantly false, but I am being polite because I don't
agree with her recitation of the facts here.
time with telling the truth.
Now
She has a hard
THE COURT:
Wait a second.
Right now I am talking about the representation
that she made that your client has not produced the bank
records to reflect the location of the bank where his Social
10
Security deposits are deposited.
Is that correct?
11
MR. KLAYMAN:
That is correct.
12
But he testified yesterday that he is using
13
National Bank, CitiBank and I believe it was Bank of America.
14
They are national banks.
15
he is getting it.
16
because that's through a national bank and it doesn't matter
17
whether he is a resident of Florida or not.
They don't have any one location and
He is currently getting it in Washington
And we have produced all the information about his
18
19
residency here, but he has voter registration here.
20
telephone number here.
21
telephone numbers in Miami.
22
here and he testified as to that and that he could not travel
23
because he fell and hurt himself.
I believe we have produced that, the

He has made arrangements to live
See, this is a characterization of the testimony
24
25
He has a
Your Honor.
We can certainly be happy to put forward his
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1
testimony, but it was seven grueling hours and he did not
refuse to answer any questions in this regard.

So I don't understand why she is trying to create
3
4
this kind of smoke here.
an operation for his brain aneurism to come here and testify,
which is why he is so sick.
beginning of his deposition.
THE COURT:
We've been forthcoming.
He put off
You could see him shaking at the

It was videotaped.
So this precise issue of the bank
records, Mr. Klayman, which would show the location of the bank
10
account where his Social Security disability payments have been
11
deposited, you will produce those records, all the records
12
within one week.
13
MR. KLAYMAN:
14
like to produce financial information.
15
bank where it is coming into it?

THE COURT:
16
Okay.
Could I ask?
We would not
Could we just show the
Well, what I want you to do is you
17
could redact all the information on those records, other than
18
the location of the institution and the particular items
19
reflecting the direct deposit from Social Security.
20
once a month.
21
Probably
Everything else, all the checks he wrote, the
22
deposits, credits, debits, you can redact all of that.
The key
23
point here is the location of the bank and the fact that that's
24
the account receiving the Social Security disability payments.
25
So that will be done within one week.
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Now, let's go to the next subcategory.
Mr.
Klayman says, my gosh, we produced a lot of documents about
domicile, voters registration, et cetera.
pinpointed one category, one subcategory, namely the bank
account location records.
Fine.
You have now
I granted that request.
What else in the category of domicile?
MS. HANDMAN:
Well, he testified that he doesn't
have a lease.
So I have to take his word --
10
11
That he doesn't have any written understanding.
THE COURT:
He can't produce a lease if he does
not have a lease.
12
MS. HANDMAN:
We only heard yesterday of this
13
arrangement that he has with his friend, but what we do want
14
is, he did testify that he is looking for assisted living and
15
we asked who is your agent because he says he has an agent.
16
Who is your agent for that?

What steps have you taken to find assisted living?
17
18
So if he doesn't have anything to reflect the arrangement
19
currently, we would like to know what are the prospective
20
efforts being made.

THE COURT:
21
There is a problem with that request,
22
Counsel.
In effect, that sounds like more of an interrogatory.
23
Explain to me the steps that you have taken.
24
broker or the agent that you have retained in order to help you
25
find assisted living.
Identify the
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That is more of an interrogatory or a deposition
question.
Right now my understanding is we are talking about a
document request.
So I think what you are saying is produce to me
documents reflecting or relating to efforts you have made to
obtain assisted living in Miami including, for example, a
contract or a retainer agreement with an agent, or a real
estate broker, or a medical facility's consultant.
That's the kind of thing you are asking for?
10
MS. HANDMAN:
11
THE COURT:
12
Correct, Your Honor.
Okay.
Mr. Klayman, are there any such
documents?
13
MR. KLAYMAN:
14
That was never actually requested.
15
up at deposition, but I will be happy to check.
16
THE COURT:
17
Okay.
I'll check, Your Honor.

This just came
Wait just a minute.
Again, we proceed in an orderly way.
If
18
you have made a request for production that includes a request
19
for assisted living documents, then, I will certainly grant
20
what is, in effect, a de facto Motion to Compel.
21
MS. HANDMAN:
22
THE COURT:
Correct.
If this is something that came up
23
yesterday in a deposition and it is not covered by a request
24
for production, then, there is nothing that I can compel
25
because you have not made that request.
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So is there, in fact, a specific item in a request
for production that you think would cover an effort to obtain
assisted living?
Montgomery to turn it over because you haven't asked for it.
If not, I am not going to compel Mr.
MS. HANDMAN:
Well, I know we asked for a lease
and Mr. Toth is checking whether for the categories of
documents that we requested, I will say in addition, on the
phone number, they provided the phone number.
like the phone records to show us when indeed the Florida phone
10
number was obtained.
11
you are ready to move to the next topic.
And we would
It does also go -- well, I don't know if
12
THE COURT:
No, we are not ready to move.
13
Mr. Toth, have you found that particular spot in
14
the request that would include documents concerning Mr.
15
Montgomery's efforts to obtain assisted living arrangements in
16
Miami?
17
MR. TOTH:
Not yet, Your Honor.
18
MS. HANDMAN:
As I said, Your Honor, we only
19
learned about that yesterday.
20
enough, we will have to check.
21
THE COURT:
Okay.
So whether the request is broad
But I understand how things
22
have unfolded, but I really cannot compel somebody to produce
23
something and find fault with their production when you only
24
requested it informally yesterday in a deposition, or maybe
25
today is the first time you have requested it.
I don't know,
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but I cannot fault Mr. Klayman for not producing documents that
have not been requested yet.
MS. HANDMAN:
I understand, Your Honor.
And I am not suggesting fault be found.
As you
know, Your Honor, we are under this extreme deadline and just
merely the fact that this morning Mr. Klayman filed something
opposing our effort to get extended deadlines.
8
9
And says the FBI has to go through all these

documents and go through the classification process, you know,
10
it is -- and we do have a motion pending and we will,
11
obviously, bring this all to Judge Martinez' attention, but it
12
is inconsistent to say the FBI has to go through this process,
13
but by the way, you can't get an extension of September 16th.
14
THE COURT:
We are back-peddling because now you
15
are going back to the software and I don't want you to do that.
16
I have already heard all I need to hear about the software.

MS. HANDMAN:
17
18
I may.
19
THE COURT:
20
MS. HANDMAN:
21
THE COURT:
22
project yet?
23
anything?
24
25
I want to go to the tax returns, if
Not yet.
No.
So Mr. Toth, have you finished your
Because it sounds to me like you haven't found
MR. TOTH:
Your Honor, I looked through them and I
haven't seen any particular request that appears to include the
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information that --
THE COURT:
So I am not going to compel Mr.
Montgomery to turn it over because it has not been requested
yet.
Now, we talked about the next category you
mentioned was phone records for the Florida phone because you
want to see when the Florida phone account was opened, or who
opened it, et cetera.
Have you turned over those records?
10
11
MR. KLAYMAN:
I don't believe those were requested
either.
12
THE COURT:
So here is what we are going to do,
13
Miss Handman.
14
particular request of documents that you want produced, let's
15
first deal with the threshold issue of whether they have even
16
been requested.
17
From now on every time you talk to me about a
If they have not, I am not going to order Mr.
18
Montgomery to turn them over.
19
for production you have asked for these phone records to
20
reflect when the telephone number accounts were opened.
21
there such a request?
22
23
24
25
MS. HANDMAN:
So show me where in the request
I don't know, Your Honor.
Is
Probably
not in that specificity.

THE COURT:
All right.
Well, for the time being,
unless you can call my attention to a particular request later,
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I am not granting that request because it was never previously
requested.
Next category, income tax returns.
MS. HANDMAN:
Mr. Klayman correctly represented that at the
Yes.
deposition Mr. Montgomery said he did not have tax returns from
2008 through last year.
8
9
What he didn't say was the reason was that Mr.

Montgomery said he has not filed income tax returns for those
10
years claiming that this was an audit status and claiming that
11
the government seized all his records on national security
12
grounds and so he couldn't file tax returns.
13
THE COURT:
Miss Handman, let's assume that that
14
is completely false.
15
facing prosecution for failing to file tax returns, but that is
16
not before me right now.
17
returns.
We made a broader request, Your
Honor.
20
THE COURT:
21
MS. HANDMAN:
22
THE COURT:
23
Maybe he is
You have made a request for tax
MS. HANDMAN:
18
19
Maybe he has tax exposure.
Passover Seder.
My gosh.
Sorry.
You must be a heck of a person at a
Can you just refrain, please.
24
So Mr. Klayman has turned over the returns for
25
certain years and for the missing years, 2008 through 2012.
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Mr. Montgomery, as I understand it, has testified in a
deposition that he does not have any tax returns.
Because he never filed the returns.
What would you have me do?
Why?
I can't compel him to
turn over something that does not exist.
So, basically, this
should be denied because he does not have them, correct?
MS. HANDMAN:
We asked for records indicating income for the
But he asked a broader request.
years 1998, I believe it was.
And obviously, if you don't have
10
the tax returns, there are other ways of producing records that
11
reflect income.
12
THE COURT:
Show me, or tell me, or read to me the
13
particular request where you have asked for financial records
14
reflecting his income from 1998 to present.

MS. HANDMAN:
15
16
It is item number 52 in our document
request.
17
THE COURT:
Yes.
18
MS. HANDMAN:
Please produce all documents and
19
electronically stored information concerning any income,
20
salary, and benefits, and the source of that income, salary and
21
benefits you received from January 1, 1998 through the present.
22
Including, but not limited to federal and state
23
income tax returns, including, but not limited to all 1099
24
forms, W-2 forms, and schedules for tax years 2008 to 2014,
25
including, but not limited to any estimated tax submissions for
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1
2015, or in the alternative as to tax returns, signed releases
which would allow us to get it from the IRS.

So appropo of your bank records, for example,
3
4
those records would reflect income and that would be what if
indeed the government had seized his records as he claims, the
bank records would be, obviously, evidence of what his income
was.
MR. KLAYMAN:
THE COURT:
10
May I respond, Your Honor?
Yes.
MR. KLAYMAN:
By Miss Handman's own admission,
11
they have asked for records for 16 years.
12
relevance of that?
13
and that is a valid objection.
14
So we object to overbreadth and harassment
THE COURT:
Miss Handman, why are you entitled to
15
records dating all the way back to 1998?
16
the alleged defamation?
17
18
19
What is the
MS. HANDMAN:
What was the year of
The defamation was in 2014, but it
related to companies that he joined in 1998.

I think, if I am not mistaken, we may have in the
20
meet and confer agreed to limited and I am prepared to limit it
21
now, but that is the reason for the 1998 date.
22
date begins in 2003, which is when he starts offering his
23
software to the government.
24
book, but it was through a company called Intrepid, which was
25
founded in 1998.
But the key
And that is the subject of the
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2
MR. KLAYMAN:
Miss Handman is backtracking right
now to make this look like a legitimate request and it is not.

It is harassment, Your Honor, and we objected
3
4
legitimately to it.
don't know of any case that you have to produce your financial
records for 16 years when the defamation took place in 2014.
16 years is more than unreasonable.
THE COURT:
All right.
So on this particular
request, which is request number 52, I am going to require Mr.
Montgomery to produce all responsive documents for the years
10
2003 to date and I will give you two weeks to do that.
11
Now, I understand Mr. Klayman that Mr. Montgomery
12
is taking the position that the government seized his records.
13
However, unless --
14
Strike that.
15
However, there may be other documents that are
16
within his custody or control in which he could obtain, such as
17
bank records from 2003 to date, such as if he received any 1099
18
forms or W-2 forms.

He may have received those sorts of tax documents,
19
20
regardless of whether he filed an income tax return or not.
21
Any kind of a K-2 distribution statement, if there are any such
22
statements.
23
to date and those will be produced within two weeks.
Other records reflecting revenue income from 2003
24
What is your next category, Miss Handman?
25
MS. HANDMAN:
Medical records, Your Honor.
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We asked for medical records.
MR. KLAYMAN:
Could we stay on this topic for a
second?
THE COURT:
MR. KLAYMAN:
records, Your Honor.
time.
Medical records?
No, the issue of the financial
I may ask a vacation period during this
May we have ten days to produce?
THE COURT:
MR. KLAYMAN:
10
I believe for --
Well, I actually said two weeks.

Two weeks.
I'm sorry.
I didn't
hear you.
11
THE COURT:
Longer than ten days.
12
MR. KLAYMAN:
13
Okay.
No, no, that's fine.
One thing I will point out, this is the
14
misrepresentations that were made and it is very hard to
15
address it because Miss Handman is, like, pulling rabbits out
16
of a hat, but we did produce all of our tax returns from 2003
17
to 2008.
18
THE COURT:
19
I am not asking you to reproduce the tax returns.
20
I am talking about other documents; bank records, W-2s, 1099s,
21
distribution statements, partnership records.
22
I'm talking about.
25
You know what
Financial --
MR. KLAYMAN:
23
24
I understand.
And if he has them we will in two
weeks.
THE COURT:
If he has them you have to turn them
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over and if he does not have them, then, you cannot turn them
over.
I mean, that's --
MR. KLAYMAN:
I understand.
THE COURT:
-- reality.
All right.
Medical records.
MS. HANDMAN:
We asked for item 33 on our document request for
Yes, Your Honor.
all medical, psychiatric, psychological and prescription
records pertaining to your health issues referred in Paragraph
10
13 of the amended complaint.
11
And that is overall a claim that his medical
12
condition now where he had aneurism in -- well, it's unclear if
13
it's 2010 or 2011 and I'll get to that point.
14
stroke in the court following aneurism surgery in May of 2014
15
that somehow in our book in October of 2014 is responsible for
16
all of the consequences from that, including 11 million dollars
17
in medical expenses and past and future and all the work that
18
he is missing as a result of this.

THE COURT:
19
20
23
What is that particular paragraph
number in the amended complaint that this relates to?

MS. HANDMAN:
21
22
And then, a
It's Paragraph 13 of the amended
complaint.
THE COURT:
All right.
And that's the one where
24
he alleges these medical consequences?
25
MS. HANDMAN:
Right.
And he says it as much also
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in the answers to interrogatories and he said it as much
yesterday as well that he is claiming that we're responsible
for that.
So Mr. Klayman took the position that we were only
entitled to records from 2011 forward and we have not gotten
any records post April, mid-April.
was a doctor's note, basically, saying he is sick.
8
9
And the only record we got
And we haven't gotten anything since then and we

didn't get anything pre -- I believe the fall of 2011.
Even
10
though the records that were produced indicated that the
11
aneurism was first diagnosed in 2010 and two doctors said that
12
in the records that were produced.
13
So obviously, aneurisms have a history.
And he
14
did not say that he had headaches before the aneurism, et
15
cetera, and we think that we are entitled to a full accounting
16
of all the records that he has that relate to his claim that
17
we're responsible for his health.
18
THE COURT:
Just so I am clear, Mr. Montgomery,
19
through Mr. Klayman has produced medical records, but you say
20
it is not complete.
21
are, number one, anything after April of this year and before
22
the fall of 2011.
23
24
25
And the categories that you are missing
That is what you are missing on the very tail end

and, then, going back several years.
Mr. Klayman, your position?
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MR. KLAYMAN:
It is my understanding, Your Honor,
we will go back and check that we did produce everything,
everything that he has in his possession.
hide in this regard.
We have nothing to
I mean, it is to our advantage to produce it, but
you know, this again in my view, is a tactic at the earlier
hearing where Judge Martinez, she mocked his health with regard
to a brain aneurism.
sister had it.
10
make fun of it.
11
frankly.
12
And Judge Martinez says, I think my
So it is really severe, Miss Handman, so don't

I think that is what got the early trial date,
And then, yesterday when my client said he is
13
feeling bad and wants to take a break, she says to him, well,
14
that's what you get for filing this lawsuit.
15
16
17
See, this is a tactic.
We want to provide all of
that stuff and there is nothing to hide in that regard.

THE COURT:
Are there any recent medical records,
18
Mr. Klayman, from April of this year going forward to the
19
present that you have not turned over?
20
MR. KLAYMAN:
21
THE COURT:
I will go back and check.
So I am not going to require them to
22
go way back to 2010.
23
all medical records that have not yet been produced from April
24
2014 to the present and that will be within two weeks.
25
I will require Mr. Montgomery to produce
MS. HANDMAN:
And if I might just address one
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point.
We had offered to do the deposition in Seattle.
attempted to accommodate Mr. Montgomery in every way.
was only that he -- this is a lawsuit he chose to bring.
Therefore, he did sit for a deposition.
it wasn't difficult and I did not mock, in any way, his
condition at any time.
THE COURT:
We
My point
I do not disagree that
This is really not a critical issue
for me and I am not going to spend -- by the way, was this a
videotaped deposition?
10
MS. HANDMAN:
11
THE COURT:
Yes, it was.
I am not going to take the time
12
reviewing a videotaped deposition to see one way or another
13
whether or not Miss Handman mocked Mr. Montgomery.
14
My ruling is not based on whether that did or did
15
not occur.
But by the way, just for my own background, Mr.
16
Klayman, did the Defense offer to take Mr. Montgomery's
17
deposition in Washington where he lives?

MR. KLAYMAN:
Washington, D.C. or Miami.
20
MS. HANDMAN:
Not Seattle.
21
MR. KLAYMAN:
All three and we chose Miami.
22
THE COURT:
23
MR. KLAYMAN:
24
THE COURT:
25
MR. KLAYMAN:
18
19
We chose
Miami.
Okay.
For a lot of different reasons.
That's up to you and your client.

He traveled here at his expense.
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And you know, one of the things that is evident here, you know,
is that this is going to be a contentious case and we
understand that.
We are the Plaintiff.
THE COURT:
Okay.
MR. KLAYMAN:
Yeah, but I have a long history with
Miss Handman and she has a long history with me.
you know, they've got a former FBI agent trailing every one on
this case and that is how contentious it is.
contentious it is.
10
11
THE COURT:
That is how
tailing you?
MR. KLAYMAN:
13
I don't care.
15
And
Are you suggesting that they are
12
14
Okay.
about my history.
They probably are.

Your daughter may know a little bit
I don't know.
MS. HANDMAN:
It doesn't matter.
I do know that Mr. Klayman had a
16
process server come to my home at 10:30 at night to subpoena my
17
husband in a case that he has brought against the Clintons in
18
the Southern District of Florida.
19
And ultimately, Judge Middlebrooks threw out the
20
case and stayed the discovery until he had done so and the
21
issue never came to a head, but --
22
23
THE COURT:
Folks, listen, I am sure you both have
a lot of colorful anecdotes about each other going --
24
MR. KLAYMAN:
25
THE COURT:
It's amusing, Your Honor --
It is not amusing.
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MR. KLAYMAN:
I understand.
Her husband is Ickes, the closest person to
Hillary Clinton in the United States and I have a long history
with Mr. Ickes, too, on the level of Cheryl Mills and Huma -- I
can't pronounce it -- involved in the e-mail scandal.
THE COURT:
Let's get back to this particular
discovery case.
alleged Hillary Clinton e-mail scandal.
that is quite on point.
10
I am really not prepared to go into the

I do not really think
So are there any other categories of documents
11
that you are seeking?
We have already covered medical records.
12
We have covered phone records.
13
regarding his domicile.
14
returns.
We have covered documents
We have talked about income tax
We talked about phone records.
15
What other category?
16
MS. HANDMAN:
Your Honor, there are no other
17
categories.
What we are seeking -- well, I should say the one
18
other category that is very, very critical is the government
19
tests that Mr. Montgomery references that validated his
20
software.
21
THE COURT:
Yes.
22
MS. HANDMAN:
23
THE COURT:
24
MS. HANDMAN:
25
THE COURT:
And --
Was that requested?

Yes.
Tell me what number.
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MS. HANDMAN:
And one other thing which was the
location of the software, which I guess now we know is in the
hands of the FBI, but whether it is available at other
locations we don't know.
5
6
THE COURT:
I saw Mr. Toth circle some things.
don't know if he found something.
MR. TOTH:
THE COURT:
MR. TOTH:
I think it is request number 9.

What does number 9 say?
Please produce copies of the, quote,
10
government's own test of Plaintiff Montgomery's software or
11
your company's software that, quote, confirmed its
12
effectiveness and reliability, end quote.
13
Paragraph 48 of the amended complaint identified in response to
14
interrogatory 10 above.
15
THE COURT:
16
turned over those tests and reports?

MR. KLAYMAN:
17
18
All right.
Referred to
So Mr. Klayman, have you
It is my understanding we have, but
we will check, Your Honor.

THE COURT:
19
Well, I don't know if you noticed it,
20
but while you were saying that, Miss Handman was vigorously
21
shaking her head, no, which I interpret it to mean that, no,
22
you have not.
23
MR. KLAYMAN:
24
THE COURT:
25
drives me crazy, folks.
Well, I disagree.
See, this is the kind of thing that

It happens very frequently.
One party
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will say, yes, we turned it over and another party says we did
not.
Is your paralegal a little more familiar with the
3
4
specific documents that were turned over than you are?
Typically, in a big case as the lead lawyer may
not have complete familiarity with each and every document and
the paralegals are a little bit more enmeshed in the nuances.
8
9
MR. KLAYMAN:
lawyers.
They are generally sharper than the
In this case that's true.
10
THE COURT:
And all of my paralegals over the
11
years were way smarter than me.
12
another handle, ma'am, on whether these tests and reports were
13
turned over?
14
MS. JAMES:
And if you could give me
I believe -- I was in receipt of one
15
document, a one-page document that I believe was turned over.
16
If it wasn't turned over, we will be happy to turn it over.
17
THE COURT:
18
that you have is a one-page document?
19
MS. JAMES:
In my possession.
20
THE COURT:
How about in Mr. Montgomery's
MS. JAMES:
Mr. Montgomery has told me that he
21
But that's the only test and report
That is correct.
possession?
22
23
provided everything to us that he had, as far as the test
24
validating.
25
THE COURT:
All right.
So what I am going to ask
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you to do because they, basically, told us now on the record
that they've made a representation to a federal magistrate
judge that they have turned over all of the tests and reports
and the software that are in Mr. Montgomery's possession.
that consists of a one-page document, which was already turned
over.
And
So within a week, I would like you to advise
Defense counsel with the particular Bates number of the
documents that you turned over, this one-page test or report.
10
Then, you do not have anything else.
11
of a stone.
12
So I cannot get blood out
And whether you believe Mr. Montgomery, Miss
13
Handman, or not, there are certain other steps that you can
14
take, including, you know, cross-examination at trial and maybe
15
the jury will find it preposterous that he does not have these
16
government reports and tests.
17
he does not have them.
18
about.
Maybe they will understand that
Who knows?
That is what trials are all
So in any event, you will have that homework
19
20
assignment to get the Bates numbers.
What did I say, one week?
21
MS. JAMES:
Yes.
22
THE COURT:
One week to designate and advise the
23
Defense of the one-page report or test that was already turned
24
over.
25
if it turns out that, whoops, you made a mistake and you did
And if it turns out -- when you go through your records
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1
not actually turn over that one-page report, even though in
good faith you thought that you did, then, obviously turn it
over within that one week, okay.
4
5
MR. TOTH:
point?
THE COURT:
MR. TOTH:
Your Honor, may I just make one small
Yes.
Our request number 7 is well, I think
was also on point.
It is, please produce all documents and
10
electronically stored information pertaining to all persons
11
with knowledge of your, or your company's software, or the
12
location of your software identified in response interrogatory
13
number 9 above.
14
I just think that's important because, especially
15
in terms of turning over the software and documents and
16
communications reflecting that, that would also, I believe, be
17
accomplished in that interrogatory.
18
THE COURT:
19
MR. TOTH:
20
THE COURT:
21
Excuse me.
Request for production.
Would you read that to me one more
time and just tell me the number again.

MR. TOTH:
22
23
Mr. Klayman --
It's number 7, request for production
number 7.
24
THE COURT:
25
MR. TOTH:
Read it slowly, please.

Please produce all documents and
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electronically stored information pertaining to all persons
with knowledge of your, or your company's software, or the
location of your software identified in response to
interrogatory 9 above.
MR. KLAYMAN:
Well, first of all, that would
include hundreds of people and to the best of Mr. Montgomery's
knowledge, he did advise --
8
9
THE COURT:
interrogatory.
Just keep in mind, this is not an
It is a request for production?
10
MR. TOTH:
11
THE COURT:
Right.
So if you have a document showing the
12
identity of a witness who would know the location of the
13
software, then, you should turn it over.
14
But I think what Mr. Toth is sort of suggesting is
15
almost akin to a narrative interrogatory answer, which is
16
really not appropriate when we are talking about a document
17
request.
18
19
20
21
22
So a document request and not an interrogatory.

So have you turned over documents, which would be
responsive to request number 7?

MR. KLAYMAN:
Our understanding is that we did,
Your Honor, but we will certainly go back and check.

THE COURT:
So for example, if this request number
23
7 says, produce all documents reflecting the identity of all
24
persons who know the location of the software, then, arguably
25
if you had a letter to or from Miss Curtis, the assistant U.S.
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1
attorney, discussing the procedures for turning over the
software, then, that would be a responsive document.
If you had a communication between you and an FBI
general counsel concerning the methodology and procedure for
turning over the software, then, that document would need to be
produced because that person would be a person who has
knowledge of the current location of the software.
So I know that maybe you think you may have
produced all the documents, but now that I have flagged this
10
issue for you, maybe you realize that you have not quite yet
11
turned over all the documents.
12
assumption is wrong and you have turned over those documents
13
concerning the disclosure to the FBI.
Unless I am wrong, my
14
Have you turned over those documents?
15
MR. KLAYMAN:
16
17
No, Your Honor.
That occurred after
the document production.

THE COURT:
All right.
So your paralegal,
18
probably your paralegal will be carrying the labeling over
19
there to track those down and turn them over to the Defense
20
within ten days, okay.
21
So let me also just circle back to the category,
22
or the topic that consumed the lion's share of the deposition,
23
which is the actual software.
24
So I am, in fact, Mr. Klayman, going to order Mr.
25
Montgomery to turn over that software and to take advantage of
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1
his right of continued access to nonclassified information.
I understand that you may have a certain position
and you may make that position known, but right now that is
going to be my order and you will do what you see fit under the
circumstances.
6
7
MR. KLAYMAN:
Honor?
What if the FBI determines that it is classified?
8
9
What if it is classified, Your
THE COURT:
Then, we are in completely different
situations, but as far as I know, that has not happened yet.
10
Listen, you will file in response whatever you deem
11
appropriate.
12
I am aware of the history.
I think we are all
13
aware of the practical difficulties in quickly obtaining the
14
software, given the fact that Mr. Montgomery did not keep a
15
copy, but for the time being, I am going to enter that order
16
for whatever it is worth.
17
under the circumstances.
18
That is about the best that I can do
And if the Defendants later want to file a
19
different motion, I think Miss Handman was talking about
20
dismissing the case, and entering a default, an adverse
21
inference arising from this decision to turn over the software
22
without keeping a copy and without timely advising them, that
23
is a different issue for a different day.
24
25
Right now we are just here on a discovery dispute.

And my ruling on the software is even though I recognize that
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Mr. Montgomery no longer has it, I am going to order him to
turn it over because discovery requests are not only what is in
your current possession, but in your custody or control.
And you already told me that Mr. Montgomery has
continued access to nonclassified information.
So he can use
that as a potential hook or springboard to try to get that
information.
MR. KLAYMAN:
That's fine, Your Honor.
We anticipated that and we are respectful of this
10
Court and all processes of this Court and I respect Your
11
Honor's decision here.
12
I would disagree with it, not because of you, but
13
if it does turn out to be classified that it would, in effect,
14
cause a crime to turn it over.
15
THE COURT:
I understand.
16
I am not making any further rulings now than what
17
I have made today.
18
appropriate and I already have a pretty good idea of what your
19
position is going to be.
20
this hearing.
21
And so you will do what you deem to be
We already spoke about that during
MR. KLAYMAN:
And assuming, however it comes out
22
in the end with regard to the software or not, their intention
23
is to give it to an expert.
24
precautions taken in that regard with regard to that expert.
25
And of course, we need an expert, too, at that point.
So there would have to be special
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THE COURT:
Understood.
MR. KLAYMAN:
Now, I have a motion pending, too,
and I realize it is past 5:00 and Your Honor is not feeling
well.
THE COURT:
Folks, here is what we are going to
do.
We are going to take a five-minute break.
care of something and, then, we will be back in five minutes
and we will deal with your issue, okay.
(Recess.)
10
THE COURT:
11
ruling on the software.
12
I need to take
So one other thing concerning the
Mr. Klayman, by next Wednesday, you are going to
13
be writing a letter to the FBI attorney who is involved in this
14
situation.
15
going to advise the FBI general counsel, or any other
16
appropriate FBI attorney involved that I have ordered you --
17
that I have ordered Mr. Montgomery -- to turn over the
18
software.
19
I think you mentioned general counsel.
And you are
And that I am directing Mr. Montgomery to use his
20
right of continued access to nonclassified information in order
21
to obtain the software or a copy of it.
22
counsel on that letter and you will file that letter with the
23
Court under a notice of filing and you will do that by next
24
Wednesday, please.
25
MR. KLAYMAN:
You will copy Defense
Yes, Your Honor.
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2
THE COURT:
And we will get to your particular
discovery dispute.
MR. KLAYMAN:
Your Honor, I did send to you last
night, and we copied the other side, a redacted e-mail that was
produced --
THE COURT:
MR. KLAYMAN:
THE COURT:
9
10
here.
Right.
Yes.
I got that.
Let me pull that out
It says at the top, redacted attorney/client
work product from Eric Lichtblau.
11
MR. KLAYMAN:
12
THE COURT:
13
-- by the Defendants.
That's Risen's partner.
Meaning, his business partner or his
partner in --
14
MR. KLAYMAN:
Well, you never know.
15
MS. HANDMAN:
He is a New York Times reporter who
16
co-authored it.
MR. KLAYMAN:
17
18
Unless you don't live in West
Hollywood you might not know.

Okay.
19
But in any event, Eric Lichtblau is a
20
reporter is also a national security reporter that works with
21
Mr. Risen at the New York Times.
I know him myself.
And this e-mail, subject, con man to James Risen
22
23
says:
I got some terrific stuff today.
Spent eight plus hours
24
with the source and left with a thumb drive with 20,000 pages
25
of documents.
I have a much better grasp of the whole story
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1
line and characters.
Hayden and Negroponte were directly
involved, in addition to Cheney aides, plus major involvement
by Kemp, Clinton wing man Burkle, Navy sec, Conrad Burns and
others.
Flying back tomorrow -- Eric Lichtblau.
And what they're talking about here are documents
that were obtained from Mr. Montgomery's former lawyer, Michael
Flynn, 20,000 documents.
I took --
THE COURT:
10
I'm sorry.
Let me make this clear.
So you are telling me
11
that the source mentioned in this e-mail is Michael Flynn, Mr.
12
Montgomery's former lawyer?
13
MR. KLAYMAN:
Correct.
14
And they have had a contentious relationship.
15
Flynn, according to Mr. Montgomery, overbilled him
16
significantly.
17
difficulty.
18
to destroy Mr. Montgomery financially and otherwise.
Mr.
He couldn't pay and fell into financial
Mr. Flynn became hostile and, essentially, tried
We had requested these 20,000 pages of documents.
19
20
Some were produced with the initial disclosures of the
21
Defendants, but we followed it up with a request for production
22
for all of them.

At the deposition of Mr. Risen, I asked him about
23
24
the 20,000 documents.
25
he had them.
And initially, he seemed to confirm that
And then, to make a long story short, Miss
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Handman jumped in with speaking objections and suggested that
there weren't 20,000 documents.
Risen if he reviewed the 20,000 documents before they were
turned over --
MS. HANDMAN:
THE COURT:
MS. HANDMAN:
THE COURT:
And then, when I asked Mr.
20,000 pages, just to be accurate.
Ma'am -I'm sorry.
The rule, in pretty much every court
in the land, as far as I know, it is the no interrupting rule.
10
It is the same rule that you learn in kindergarten.
11
do not interrupt.
12
Klayman is finished and, then, you may respond.
If you have something to say, wait until Mr.
13
Understood?
14
MS. HANDMAN:
Yes.
15
MR. KLAYMAN:
20,000 pages.
16
So please
Okay.
I said
documents -- pages -- that's what I meant.

Anyway, Miss Handman wouldn't let him answer
17
18
questions as to whether he had turned all these 20,000 pages
19
over to her and whether they were produced or would be
20
produced.
21
In any event, we later served a request for
22
production and we only got a handful of documents of the 20,000
23
pages out of that production.
24
those documents.
25
THE COURT:
Mr. Montgomery is entitled to
When you say you received a handful,
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literally, that would mean five or less, five pages out of
20,000.
20,000?
So how many pages did you actually get out of the
MR. KLAYMAN:
Yes.
Of the 20,000 I'm going to go
back and check the exact page numbers, but we only got a subset
of those documents.
production, but we did get some with the initial disclosures.
We are still going through the last
THE COURT:
Yes.
MR. KLAYMAN:
Okay.
And they were about 4,400
10
documents all totaled, not just the Risen documents, but other
11
documents.
12
THE COURT:
13
MR. KLAYMAN:
14
Pages, okay.
All right.
Not just the Flynn documents.
20,000 pages --
15
THE COURT:
16
MR. KLAYMAN:
Right.
-- are at issue here, but we only
17
got 4,400 documents at the initial disclosures and many of
18
those were not Flynn related documents.
19
Okay.
Okay.
Now, we served another request to produce.
20
And I had my associate go through those documents this morning
21
that were produced and there were only a handful of documents,
22
five to ten, that were produced from at least 20,000 pages.
23
Now, I would like Your Honor to order them to
24
produce all of the 20,000 pages of documents because they are
25
Mr. Montgomery's documents .
They are attorney/client
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privilege and they are work product.
what Flynn turned over to Risen.
He is entitled to see
I think Mr. Flynn has committed a major ethical
3
4
violation here in doing that, but that's besides the point.
is entitled to the documents so we can see if there is anything
discoverable in there that is usable.
retaliation for Mr. Montgomery not being able to pay him,
started to collaborate with Risen and has called my client a
fraud.
10
He
Because Mr. Flynn, in
I don't know how a lawyer can call a former client
11
a fraud and, frankly, not be disbarred.
12
you can turn over 20,000 pages of documents which contain
13
attorney/client work product to a reporter.
14
And I don't know how
This also bears on Mr. Risen's ethics and
15
credibility that he would induce Mr. Flynn to violate his oath
16
as an attorney.
17
20,000 pages be turned over and produced.
So what I am asking for is that all of those
MS. HANDMAN:
18
Your Honor, for all the documents
19
that Mr. Risen has ever received from Mr. Flynn have been
20
produced.
21
The initial disclosures included many of the
22
documents that Mr. Flynn provided.
23
initial disclosures just ask what you are planning to rely on.
24
25
And if you recall, the
Most of what Mr. Risen had were court records that

Mr. Flynn has.
There has been endless litigation among these
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various people and a lot of it was court records.
shows up in our fair report by our arguments on the Motion to
Dismiss.
Much of it
Mr. Risen was indeed deposed on June 19th.
There
had not been any document requests at that time.
He testified
at length on this subject and said he didn't believe there were
20,000 pages.
published in February of 2011 in the New York Times that
Lichtblau downloaded some of the documents, the ones he thought
That this was for their article that was
10
interesting and gave those to Mr. Risen.
11
most of them were court records and that was his testimony.
12
Mr. Risen thought
Then, Mr. Klayman issued a document request for
13
all documents that Mr. Risen had received from Mr. Flynn.
14
we, therefore, produced whatever was supplemental to that on
15
August 10th.
16
sometimes people say they don't have things and you have to
17
believe them, that is the case.
18
Risen had from Mr. Flynn.
19
So
And I, honestly, just as you said to me that
THE COURT:
We have produced what Mr.
Mr. Risen, as I understand it, didn't
20
get it directly from Mr. Flynn.
He got them from Mr. Lichtblau
21
who, in turn, got them from Mr. Flynn.
22
MS. HANDMAN:
23
And then, Mr. Risen, in the course of preparing
These, in this set, yes.
24
his book had some dealings with Mr. Flynn.
And I believe he
25
provided additional information at that time, just as he had
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1
dealings with Mr. Montgomery and incorporated that information
in his book.
So in preparing his book, he obviously amassed
some additional material beyond what he had gotten from Mr.
Lichtblau.
e-mail this was written on the fly on the way back from
California where Mr. Risen believed that was where Mr. Flynn
was.
But this specific thing, it is obvious from this
And there was, you know, maybe Mr. Flynn told him
10
there was 20,000 pages.
Who knows?
11
documents.
12
know numbers.
13
absolutely a fishing expedition.
We produced them.
And you said you didn't want to
So I won't give you numbers, but this is
14
MR. KLAYMAN:
15
THE COURT:
16
MR. KLAYMAN:
17
There were a lot of
We produced what we had.
Your Honor, may I respond?
Sure.
What we just heard was testimony by
Miss Handman and not the testimony of Mr. Risen.

Okay.
18
That was the problem at the deposition.
19
She kept interrupting.
It was clear that the 20,000 pages had
20
been turned over to her and we only got a few out of the 4,400
21
that were produced in initial disclosures.

Then, we served a Motion to Compel for all of
22
23
them.
Mr. Montgomery is entitled to all of them.
Mr. Risen's
24
book attributes Mr. Lichtblau in helping him write the book.
25
They are two top national security reporters for the New York
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1
Times.
So they are within Mr. Risen's custody,
possession, and control because Mr. Lichtblau participated with
him in writing the book.
on the fly.
a thumb drive.
over to Lichtblau on the thumb drive.
THE COURT:
9
10
11
And you can see, this was not written
This is unequivocal.
20,000 pages of documents on
So all we want is everything that Flynn turned
So you have, Miss Handman, all the
documents that Mr. Flynn turned over to Lichtblau, or you have

only the subset that Mr. Lichtblau turned over to Mr. Risen?
MS. HANDMAN:
I believe Mr. Lichtblau has given us
12
his documents and I know that Mr. Risen has given us all the
13
documents that he got from Mr. Flynn.
14
And let me just say, Mr. Lichtblau did not
15
co-author this book.
This book is written by Mr. Risen.
Mr.
16
Risen asked him to look over the book to see if he had any, you
17
know, corrections, or editorials, whatever, but he did not
18
write the book.
Mr. Risen wrote the book.
19
MR. KLAYMAN:
20
THE COURT:
21
MS. HANDMAN:
22
THE COURT:
That's -- I'm sorry, Your Honor.
So for example -And that is Mr. Risen's testimony.
So this e-mail represents, or I should
23
say, references a thumb drive with 20,000 pages of documents.
24
Now, whether or not it was written on the fly or
25
not, whether or not it was 8,000, or 14,000, or 27,000, right
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99
1
now my question is, do you have that thumb drive?
2
3
MS. HANDMAN:
Risen.
THE COURT:
MS. HANDMAN:
No, we do not and neither does Mr.
Where is the thumb drive?

Mr. Lichtblau doesn't know where it
is.
THE COURT:
So Mr. Lichtblau doesn't --
MS. HANDMAN:
THE COURT:
They're not with Mr. Risen.
Mr. Lichtblau doesn't know and Mr.
10
Risen doesn't know and --
11
MS. HANDMAN:
Mr. Risen never had it.
12
believe he ever had the thumb drive.
13
THE COURT:
He doesn't
Well, regardless of whether he had it
14
or didn't have the thumb drive, he might have some idea of
15
where it is.
16
MS. HANDMAN:
17
THE COURT:
18
the thumb drive is.
19
drive is.
20
drive is, correct?
He doesn't.
So Mr. Lichtblau doesn't know where
Mr. Risen doesn't know where the thumb
You and your legal team doesn't know where the thumb
21
MS. HANDMAN:
Correct.
22
We've never had it and Mr. Risen has never had it,
23
according to his testimony.
And Mr. Lichtblau had it at one
24
point, but he doesn't.
25
is that Mr. Lichtblau downloaded the documents that he thought
As I said, the testimony of Mr. Risen
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were relevant.
THE COURT:
Okay.
So in this situation you're
claiming the Defendant, Mr. Risen and his counsel, have said
unequivocally on the record to a Federal Magistrate Judge, we
have turned over all the documents.
So I have to accept that at face value, just like
I accepted at face value your statements of certain categories
that you turned over all the documents.
If it turns out that Miss Handman is incorrect and
10
that all the documents have been turned over, believe me you --
11
believe you me is the right phrase -- believe you me, there
12
will be plenty of other potential consequences that will arise
13
from that scenario, but right now I do not have any alternative
14
but to accept the representation at face value.

Apparently a significant number of these documents
15
16
on the thumb drive were not classified, or confidential, or
17
attorney/client work product, but instead were simply copies of
18
documents filed in various courts.
19
documents, but whether they were public or attorney/client, or
20
work product or not, the Defense says you have them all.
MR. KLAYMAN:
21
So they are public
Your Honor, the problem with that is
22
that the recitation of Mr. Risen's testimony that she just gave
23
was false.
24
thumb drive.
25
Mr. Risen did not testify that he didn't have the
THE COURT:
What did he say?
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1
MR. KLAYMAN:
I didn't get that far because I got
cut off from the questioning.
So I will submit to you the
transcript of that and show you what was said and just now was
not the case.
And what I would ask this Court to order is that
they do turn -- they be ordered to turn over the thumb drive,
just like Mr. Montgomery is being ordered to turn over the
software.
justify what was said because I was cut off at deposition with
Same thing.
Turn it over and let them come back and
10
speaking objections and trying to coach the witness into not
11
answering the question.
12
THE COURT:
Well, the order requiring Mr.
13
Montgomery to turn over the software is because Mr. Montgomery
14
was in possession of the software.
15
to me that Mr. Risen has never been in possession of the thumb
16
drive.
17
is not quite analogous.
And counsel has indicated
So it is a little bit of a different situation and it
MR. KLAYMAN:
18
Could I have an order, then, that he
19
is ordered to answer the question as to whether he has ever
20
been in possession of the thumb drive and where it is because I
21
couldn't get to that at the deposition.
22
testified to she just made up.

THE COURT:
23
What she just
So I am a little bit curious about
24
that because, Mr. Klayman, you do not strike me as a shrieking
25
violent guy.
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MR. KLAYMAN:
THE COURT:
I'm not.
So if you are at a deposition and you
are trying to find out from Mr. Risen if he ever had the thumb
drive -- and I was not there.
So I don't know if Miss Handman was being
obstreperous or not.
but the point is, even if she was, I cannot believe that an
attorney with your level of experience would simply move on and
not followup with the specific question.
10
11
I don't know if she was coaching or not,
MR. KLAYMAN:
I moved on with the witness request
and I don't see where it came out.
12
THE COURT:
All right.
So here is what we are
13
going to do because I just do not have time to review an entire
14
deposition transcript.
15
which will not require a significant amount of effort by
16
anyone.
And the summation is going to be one
So Miss Handman, by next Friday, you will submit
17
18
either an affidavit or a declaration from Mr. Risen stating,
19
unequivocally, one way or the other, whether he was ever in
20
possession of the thumb drive mentioned in Mr. Lichtblau's
21
e-mail.
22
it, if he knows the current location.
23
24
25
And regardless of whether he was ever in possession of
MR. KLAYMAN:
And we were joking about Hillary
Clinton before, but it sounds similar, doesn't it?

THE COURT:
I really cannot respond to that sort
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99
1
of comment.
So I am going to refrain.
MR. KLAYMAN:
THE COURT:
Do you have any other issues to raise
for me, Mr. Klayman, that you have noticed for today?
MR. KLAYMAN:
THE COURT:
10
All right.
So bear with me just a
By the way, what is the status?

not checked the entire docket sheet.
motion to stay?
Because I have
What is the status on the
Was there ever a ruling on that?
11
MS. HANDMAN:
12
THE COURT:
13
No, this is it, Your Honor.
minute.
8
9
Sometimes two and two equals four.
No, there was not, Your Honor.
Was there ever a ruling or not yet a
ruling on a Motion to Dismiss?
14
MS. HANDMAN:
Correct.
15
MR. KLAYMAN:
No.
16
MS. HANDMAN:
The motion to transfer, correct.
17
THE COURT:
All right.
Folks, so thanks for your
18
participation today.
19
notes on the rulings, but in any event, I am going to be
20
issuing -- folks, sit down, please, and make yourselves
21
comfortable.
22
you do not need to stand up.
23
I think everyone has taken pretty good
Especially it's a Friday afternoon at 5:45.
So
My point was probably by Monday we will issue a
24
written administrative order just summarizing the ruling.
25
you will have it on the record and it will be uploaded on
So
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1
CM/CEF.
Normally in a discovery dispute, I follow the
dictates of Rule 37, which requires an award of attorney's fees
to the prevailing party, unless the losing party has provided
substantial justification for its position, or other
circumstances making an award unjust.
The rule also says that if there are rulings that
go both ways, you can basically either subtract, or add, or
equal it out to be a draw.
10
So in this particular case, each
side won some, you lost some, and basically, it's a draw.
11
So I am not going to be awarding attorney's fees
12
to either side.
I am sort of tempted to suggest to you all to
13
try to relax a little bit and keep the level of vitriol down,
14
but I don't know if that is really going to do that much good.
15
I have a couple of cases other than this one that
16
are pretty hotly contested.
17
number of occasions and it has done absolutely no good
18
whatsoever.
19
And I made that request on a
So I am sure you folks will continue litigating at
20
whatever level of passion and energy that you have been
21
preceding under ever since the lawsuit was filed.
22
23
24
25
All right.
Folks, anything else from either side
today concerning this discovery, series of disputes?

MR. KLAYMAN:
operation, Your Honor.
Only that we wish you well with your
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THE COURT:
MR. KLAYMAN:
THE COURT:
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Thank you.
I appreciate that so much.
I didn't bring my dog today.
Hopefully I will be back on my feet
here on the bench dispensing justice sooner, rather than later.

So safe travels back to New York and safe travels
back to Brickell.
(Thereupon, the proceedings concluded.)
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CERTIFICATE
3
4
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I hereby certify that the foregoing transcript is
an accurate transcript of the audio recorded proceedings in the
above-entitled matter.
8
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08/24/15
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Bonnie Joy Lewis,

Registered Professional Reporter
CASE LAW REPORTING, INC.
7001 Southwest 13 Street,
Pembroke Pines, Florida 33023
954-985-8875

Montgomery V Risen # 110 Aug 21 Transcript As Attached ECF 111-1

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1

Case 1:15-cv-20782-JEM Document 111-1 Entered on FLSD Docket 08/31/2015 Page 2 of 99

IN THE UNITED STATES DISTRICT COURT

August 21, 2015

DISCOVERY HEARING PROCEEDINGS

BEFORE THE HONORABLE JONATHAN GOODMAN

KLAYMAN LAW FIRM

On behalf of the Defendant:

Davis Wright & Tremaine

Bonnie Joy Lewis, R.P.R.

(Thereupon, the following proceeding was held:)

THE COURTROOM DEPUTY:

U.S. District Court for the

Southern District of Florida is now in session.

Jonathan Goodman presiding; Case Number 15-27082-cv-Martinez.

Dennis Montgomery versus James Risen, et al.

Let's have appearances, starting first with the

Good afternoon, folks.

Larry Klayman, counsel for Mr.

Montgomery, with my paralegal, Miss Dina James; D-I-N-A.

Laura Handman, counsel for the

defendant, with Davis Wright Tremaine.

Brian Toth for the defense as well.

So I am starting a hearing now and it is five

Thank you, folks.

minutes before the scheduled 3:30 start, but we may need to

take a break in the middle to deal with a criminal matter that

was left over from the 1:30 calendar.

long to address that matter once the Marshal Service brings in

the missing defendant.

already, but it has not happened.

It should not take too

I was expecting that that would happen

So we are here on a discovery hearing.

motion, which is not before me, a response to extend certain

deadlines, but in that response filed today, Mr. Klayman gave

notice that Mr. Montgomery's deposition was taken yesterday,

Yes, Your Honor.

And that was a full seven-hour

Yes, Your Honor.

And I would assume that the deposition

out-of-town lawyers are here today, correct?

Correct, Your Honor.

So I understand that there are several

and you all submitted a memorandum and I read Mr. Klayman's

submission, albeit not one directly in response to this

discovery issue, but in response to the Defendant's request to

extend certain deadlines.

And I am summarizing here and basically, in this

provided all the discovery.

The Defendants know that I have

provided all the discovery.

They knew it at the time that they

filed their discovery hearing.

And in effect, Mr. Klayman is accusing the

Defendants of acting in bad faith of conjuring up a non

existence illusory discovery dispute because according to Mr.

Klayman, my God, his client has turned over massive amounts of

material and the Defendants are simply harassing him.

Is that a fair statement, Mr. Klayman, of your

It is not quite that strong, Your

It may be strong from time to time.

the information that is required.