Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 1 of 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-20782-MARTINEZ/GOODMAN
DENNIS MONTGOMERY,
Plaintiff,
v.
JAMES RISEN et al.,
Defendants.
________________________/
DEFENDANTS MOTION TO MODIFY SCHEDULING ORDER
AND REQUEST FOR HEARING FOR AUGUST 17 OR AUGUST 18

HOLLAND & KNIGHT LLP

Sanford L. Bohrer
Sandy.Bohrer@hklaw.com
Brian W. Toth
Brian.Toth@hklaw.com
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Tel: (305) 374-8500
Fax: (305) 789-7799

DAVIS WRIGHT TREMAINE LLP

Laura R. Handman (admitted pro hac vice)
laurahandman@dwt.com
Micah J. Ratner (admitted pro hac vice)
micahratner@dwt.com
1919 Pennsylvania Ave., NW, Suite 800
Washington, D.C. 20006
Tel.: (202) 973-4200
Fax: (202) 973-4499

Counsel for Defendants

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I.

INTRODUCTION AND LOCAL RULE 7.1(b)(2) REQUEST FOR HEARING

In accordance with Federal Rule of Civil Procedure 16(b)(4), Defendants James Risen,

Houghton Mifflin Harcourt Publishing Company, and Houghton Mifflin Harcourt Company,
improperly sued as HMH Holdings, Inc. (collectively, Defendants), request that the Court
extend the discovery-completion date, the dispositive-motion deadline, and the trial date set forth
in the Scheduling Order. ECF No. 48. In early May, the Court expedited this action at Plaintiffs
request, who, through counsel, stressed that his health was rapidly deteriorating. Since then,
Defendants have diligently defended this case. But, despite their diligence, it has now become
clear that Defendants cannot adequately and fairly defend the case within the current timeframe.
That is so chiefly because Plaintiff has steadfastly objected to producing important information
to Defendants, which, in turn, has caused Defendants to seek relief from the Court and has
otherwise hampered Defendants ability to conduct other forms of discovery. In sum, good cause
exists for a modest modification of the Scheduling Order, which would not prejudice Plaintiff,
who is presently actively litigating cases in different fora across the country.
Defendants request a hearing on this motion for August 17 or August 18. Plaintiffs
deposition is scheduled for August 20, yet resolution of Plaintiffs objections will not occur until,
at the earliest, August 27, when Judge Goodman will hold a hearing on the objections.
Defendants counsel have advised Plaintiffs counsel of their desire to reschedule the deposition
for a date after the August 27 hearing, which would permit Judge Goodman to rule and, if the
ruling is favorable to Defendants, for Plaintiff to produce documents. But Plaintiffs counsel has
refused to cooperate, and has written that if Defendants do not move forward on August 20, then
Defendants will have forfeited their right to depose Plaintiff and Plaintiff will not appear on

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any other date. 1 Defendants disagree with this edict, believing it is unfair and inefficient. It is
unfair because it leaves Defendants in an awful position, having either to depose Plaintiff
without the benefit of critical, discoverable information or to risk defending this action without
deposing Plaintiff at all. It is inefficient because, if Defendants depose Plaintiff on August 20
without this information, then Defendantsat significant time and expensemay be forced to
seek to depose Plaintiff a second time about the information Plaintiff has refused to produce.
II.

BACKGROUND
A.

Plaintiff requests and obtains an expedited schedule

This action began on February 24, 2015, when Plaintiff Dennis L. Montgomery filed a
complaint against Defendants for libel arising out of statements in the book Pay Any Price:
Greed, Power, and Endless War (the Book) that report allegations that Plaintiff sought to get
rich off the federal government in the postSeptember 11 era by selling bogus counterterrorism
software. ECF No. 1. On March 24 Plaintiff requested an emergency status conference to
discuss methods of expediting the lawsuit at the earliest practicable date to ensure that crucial
information in the form of Plaintiffs testimony is not lost as a result of his failing health. Pl.s
Emer. Mot. Status Conf. 1, ECF No. 9. The Court granted the request and scheduled a
conference for April 14. ECF No. 15. At the conference, Plaintiffs counsel, again raising
Plaintiffs health, stressed the need for an expedited schedule.
Meanwhile, the Court entered an order directing the parties file by May 1 a Joint
Scheduling Report, which would include proposed pretrial deadlines and a trial date. ECF No.
16. As required, the parties counsel prepared and filed on May 1 their Joint Scheduling Report
and Joint Proposed Scheduling Order. ECF No. 47. Therein, Plaintiff again pushed an aggressive

See Emails between parties counsel, attached hereto as Exhibit A.

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timeframe, suggest[ing] a 90-day time period or until August 1, 2015, to complete discovery
given the need to move this case expeditiously to trial, and propose[d] an October 2015 trial
date. For their part, Defendants requested that this action be assigned to the Standard Track:
propos[ing] January 25, 2016, as the deadline for completing discovery, and June 20, 2016, as
the date for the start of trial, further to the Standard Track appropriate for this case.
On May 5 the Court entered the Scheduling Order. ECF No. 48. The Court scheduled all
discovery to conclude by September 16, which is on the short end of the Expedited Track of
Local Rule 16.1(a)(2)(A); all dispositive motionsincluding Daubert and motions for summary
judgmentto be filed by September 21; and trial to begin during the two-week period beginning
November 30.
B.

Defendants diligence

Defendants have been diligent in defending the case. On April 9 Defendants filed a
Motion to Dismiss or Transfer. ECF No. 25. After Plaintiff filed an Amended Complaint, 2
Defendants, on May 15, filed a Motion to Dismiss the Amended Complaint or Transfer, ECF No.
52, on the grounds of lack of personal jurisdiction, improper venue, inconvenient forum, and
failure to state a claim. This motion is now fully briefed and pending. Additionally, on May 19,
Defendants filed the Motion to Stay Discovery, ECF No. 55, which is also fully briefed and
pending.
In the absence of a stay, Defendants have timely and actively pursued discovery. On June
1 Defendants served their first set of interrogatories and requests for production of documents
2

Plaintiffs counsel frequently and wrongly accuses Defendants counsel of delay tactics. But
one might wonder whether Plaintiffs counsel himself engaged in a delay tactic by filing this
Amended Complaint, which in large part added only additional jurisdictional and venue
allegations and assertions. Plaintiffs counsel could have accomplished the same thing in an
opposition to Defendants initial Motion to Dismiss or Transfer and avoided the 5-week delay in
this process.

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(the written discovery requests). On July 1 Plaintiff served his written responses and objections
thereto. They are wholly inadequate. In clear violation of Judge Goodmans discovery
procedures, ECF No. 48, Plaintiff made boilerplate, indiscriminate objections, responded to
virtually no interrogatories, and failed to turn over any actual documents or state what documents
he would be producing and which he would be holding back.
Defendants counsel acted quickly to try to resolve the objections and to comply with
Judge Goodmans discovery procedures. On July 2 Defendants counsel e-mailed Plaintiffs
counsel to schedule a meet-and-confer phone call, and on July 6 and on July 8 the parties
counsel had phone calls to try to resolve the objections. Only limited progress was made. On July
15 Plaintiffs counsel served updated written responses and objections, but Plaintiff still lodged
blanket objections. See ECF No. 90-2. And, though he produced thousands of pages of
documents, which consisted largely of public records, Plaintiff refused to produce critical,
relevant documents necessary for Defendants to defend their case properly and fullyincluding
a copy of Plaintiffs counterterrorism software, governmental tests that he alleged validated the
software, and the softwares current location. Because of this impasse, court intervention was,
and remains, necessary.
Defendants promptly brought this dispute to Judge Goodmans attention. On July 16
Defendants counselafter determining available dates for discovery calendare-mailed
Plaintiffs counsel to schedule a hearing on July 31. Plaintiffs counsel confirmed his availability
the next day, but, by then, July 31 was no longer available. So Defendants, after again
conferring, scheduled a hearing for August 7. ECF No. 90. The week of August 7, however,
Judge Goodman continued the hearing owing to unforeseen circumstances of his own. And
although Judge Goodmans chambers offered August 13 to reschedule, Plaintiffs counsel was

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unavailable; consequently, the hearing on Plaintiffs written responses and objections is now
scheduled for August 27. ECF No. 99. As set forth in Defendants pre-hearing memorandum,
ECF No. 94, complicated issues of whether, for example, the software is classified and subject to
the state secrets privilege, have been briefed and will need to be resolved by Judge Goodman.
Id. at 13.
Plaintiffs failure to comply with his discovery obligations has impeded Defendants
ability adequately and fairly to depose Plaintiff. During the July 6 meet-and-confer phone call,
Defendants counsel raised scheduling Plaintiffs deposition, and followed up with an e-mail on
July 9, seeking to schedule the deposition for mid-Augusttrusting and expecting that
Defendants would have the information needed to conduct a thorough and fulsome deposition
and proposing various dates and locations convenient to Plaintiff. Citing Plaintiffs health,
Plaintiffs counsel twice put off responding with actual dates, and only on July 16 confirmed
August 20 for Plaintiffs deposition. Defendants have thus noticed Plaintiffs deposition to take
place in Miami on August 20. But, as stated, Defendants may need to reschedule that deposition.
Third-party discoveryparticularly of government agencies and officials who dealt with
Plaintiffs software and of Plaintiffs former business partners and employeeshas been
likewise delayed by Plaintiffs failure to respond with the most basic information, such as his
communications with the government officials he identified on his initial disclosures. Discovery
of government agencies, such as the CIA, NSA, Air Force, U.S. Special Operations Command,
requires subpoenas under each agencys Touhy 3 regulations, and will be particularly timeconsuming and complex. Plaintiffs former business partners and employees are scattered in
California, Nevada, and Washington. ECF No. 52-30, at 36.

U.S. ex rel. Touhy v. Ragan, 340 U.S. 462 (1951).

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Whats more, Plaintiffs failure to produce critical discovery has affected Defendants
ability to comply with other deadlines in the Scheduling Order. By August 3 the parties were
required to exchange expert witness summaries and reports. Scheduling Order 8. On that
date, Plaintiff disclosed no one and produced no reports; in contrast, Defendants complied with
that deadline to the fullest extent they could by providing the name of their proposed experta
qualified person who may test the relevant software to determine whether it works as alleged in
the Amended Complaint. But, as stated, Plaintiff has refused to produce the software and related
information, and a hearing on Plaintiffs objection will not be had until August 27.
Even though Plaintiff has resisted providing discovery, Defendants have not. Defendants
complied with their initial-disclosure obligations and have diligently produced documents as part
of their initial disclosures on June 4 and in response to Plaintiffs discovery requests (served on
July 6) on August 10 and 11. Plaintiff deposed Defendant James Risen on June 19, 2015.
III.

ARGUMENT
In accordance with Federal Rule of Civil Procedure 16(b)(4), [a] schedule may be

modified only for good cause and with the judges consent. As interpreted by the Eleventh
Circuit, [t]his good cause standard precludes modification unless the schedule cannot be met
despite the diligence of the party seeking the extension. Sosa v. Airprint Sys., Inc., 133 F.3d
1417, 1418 (11th Cir. 1998) (quoting Fed. R. Civ. P. 16 advisory cmt. note); see also Scheduling
Order 8 (This schedule shall not be modified absent compelling circumstances.).
Nonetheless, courts have broad discretion to modify their scheduling orders. See Gadsby v. Am.
Golf. Corp. of Cal., 2012 WL 2368568, at *1 (M.D. Fla. June 21, 2012) (The Court clearly has
the discretion to extend or modify deadlines within a case management and scheduling order to
enlarge the discovery period.).

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Consistent with these standards, good cause exists to modify the Scheduling Order by
extending the discovery deadline, extending the dispositive-motions deadline, and changing the
trial date.
A.

Good cause exists to modify the Scheduling Order

Despite their diligence, Defendants cannot properly and fairly defend the case within
discovery deadline unless the Scheduling Order is modified.
As shown, Defendants have been diligent in actively pursuing discovery from Plaintiff.
As stated, on June 1 Defendants served their written discovery requests. The day after Plaintiff
served his patently inadequate written discovery responsesindeed, producing not a single
documentDefendants counsel scheduled the required meet-and-confer meetings with
Plaintiffs counsel to try to resolve them. And as soon as it became apparent that the parties were
at an impasse, Defendants followed Judge Goodmans discovery procedures to schedule the
objections for a hearing. Meanwhile, Defendants scheduled Plaintiffs deposition for a date
shortly after which Defendants reasonably expected to have resolution of Plaintiffs objections
and to have received Plaintiffs supplemental production. And Defendants have otherwise
complied to the fullest extent possible with the existing deadlinesfor example, by disclosing
the name of their expert witness. In short, Defendants have been diligent in defending the case. 4
Despite their diligence, Defendants cannot properly and fairly defend their case within
the discovery deadline. Plaintiffs defamation claims are based largely on the alleged false
statements in the Book that he defrauded the federal government with his counterterrorism

In addition to Defendants pursuit of discovery from Plaintiff, Defendants have been diligent in
seeking dismissal or transfer of Plaintiffs action; in seeking a stay of discovery both to avoid the
high expense of defending against an action that could well be dismissed or transferred and to
permit the Court time to resolve the motion to dismiss or transfer; and in addressing multiple,
unnecessary discovery disputes caused by Plaintiff.

Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 9 of 14

software. See Am. Compl. 99, 12027, 18184, 20221, 23036. One element of a claim for
defamation, of course, is a false and defamatory statement concerning another. RESTATEMENT
(SECOND) TORTS 558 (June 2015) (emphasis added). If the statements or implications that
Plaintiffs software did not work are not false, then Plaintiff will not be able to prove his
defamation claim. See Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 77677 (1986). Despite
these central allegationsand despite the entry of the Protective Order Concerning Confidential
Information, ECF No. 89Plaintiff has refused to produce the software, claiming it is classified
and subject to a state secrets privilege. Defendants have briefed these issues extensively for the
August 27 hearing, with citation to previous rulings by the Nevada federal court, holding
Plaintiff in contempt for not producing the software. Pre-Hearing Memorandum, ECF No. 94 at
2-3, nn. 711, & Exs. 25.
Assuming that Judge Goodman at or shortly after the August 27 hearing orders the
software to be produced within a reasonable amount of time thereafter, Defendantsand their
expertwill require a reasonable amount of time to review it to be able adequately and fairly to
depose Plaintiff about it. This is in addition to other documents and information Plaintiff has
refused to produce and will be ruled on at or after the August 27 hearing, such as information
relevant to Plaintiffs domicile, 5 health records, which are relevant to Plaintiffs claim of medical

As shown in the Pre-Hearing Memorandum, serious questions, based on Plaintiffs own

contemporaneous representations, have been raised as to whether Plaintiff is actually domiciled
in this jurisdiction as he alleged in his original and Amended Complaints. ECF No. 94, at 4. He
claims to be under continuous care of doctors, yet the only doctors he identifies are all located in
the Seattle area. Id. (citing ECF No. 92-2, Pl.s Resp. to Interrog. 22, at 24.) The very day he
registered to vote in Florida and the day before he filed this action claiming domicile in Florida,
he represented himself at a lengthy hearing before the U.S. Tax Court in connection with a tax
audit and led the Court to believe he was living in the Seattle area. ECF No. 94, at 4, n.20, & Ex.
10. As recently as August 12, 2015, Plaintiffs counsel in Plaintiffs criminal prosecution for
allegedly passing bad checks represented to a Nevada court that Plaintiff could not attend
because Mr. Montgomery is still in Washington State and is unable to travel because he is
9

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and emotional injury, and tax returns, which are relevant to Plaintiffs claimed economic loss. It
simply will not be possible to accomplish these tasks by the current discovery deadline of
September 16an aggressive schedule from the outset consistent with Plaintiffs health claims,
yet thwarted repeatedly by Plaintiffs delays.
In sum, good cause, as that term has been interpreted by the Eleventh Circuit, exists to
modify the Scheduling Order and prevent undue prejudice to Defendants.
B.

Proposed Modifications

As stated, Defendants seek an extension of the discovery deadline, the dispositivemotions deadline, and the trial date. Defendants respectfully suggest that the Scheduling Order
be modified consistent with the Standard Track described in Local Rule 16.1(a)(2)(B).
Because all parties agree that this case requires over three days of trial, 6 Local Rule
16.1(a)(2)(B) would place this case on a standard track in which discovery shall be completed
within 180 to 269 days from the date of the Scheduling Order. Defendants believe all discovery
could be completed within 200 days from the date of the Scheduling Order, or about Friday,
November 20which still falls within the shorter end of the Standard Track. Defendants thus
respectfully request that the Court modify the Scheduling Order to make November 20 the
discovery-completion date.

suffering from the effects of his stroke. August 12, 2015 Transcript (emphasis added), attached
hereto as Exhibit B. Further, aside from Plaintiff and his wife if they indeed reside in Florida,
just 4 of Plaintiffs possible 50 witnesses (allegedly) reside in Florida, none of Defendants
witnesses are in Florida, and most, on both lists, are in D.C. See Pl.s Witness List, attached
hereto as Exhibit C. For the reasons set forth in Defendants Motion to Dismiss and Transfer,
venue is not proper in this district, nor is it the most convenient forumand subsequent events
and discovery have only further confirmed that.
6

The parties estimate that the trial will last approximately seven (7) to ten (10) says. J.
Scheduling Report and J. Proposed Scheduling Order 3, ECF No. 47. This estimate, shared by all
parties, would suggest that this action be placed on the outer end of the Standard Track. See S.D.
FLA. L.R. 16.1(a)(2)(B).

10

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Defendants request that the dispositive-motion deadline be set for December 4. This
would give Defendants adequate time to evaluate all the discovery taken in preparing their
motion for summary judgment and other dispositive motions, if needed.
Finally, Defendants request that additional time be included between the dispositivemotion deadline and calendar call. Currently, only two monthsfrom September 21 through
November 25is allotted for filing, fully briefing, and resolving dispositive motions and
calendar call. To permit the parties sufficient time to file and fully brief their dispositive motions,
and to give the Court adequate time to prepare a written decision thereon, Defendants
respectfully suggest that about four months time after the dispositive-motion deadline should be
given before calendar call. In libel cases particularly because of their potential chilling effect on
speech about issues as important to our democracy as the conduct of our counter-terrorism
defenses raised in the Book, pre-trial disposition of libel claims is strongly encouraged and
routine. 7 Thus, Defendants respectfully request that calendar call be held April 5, 2016, for the
two-week trial calendar beginning April 18, 2016.

Sirpal v. Univ. of Miami, 509 F. Appx 924, 93031 (11th Cir. 2013) (affirming grant
defendants motion for summary judgment motion on libel claim on failure to prove falsity);
Farah v. Esquire Magazine, 736 F.3d 528, 534 (D.C. Cir. 2013) (recognizing in affirming Rule
12(b)(6) dismissal that summary proceedings are essential in the First Amendment area because
if a suit entails long and expensive litigation, then the protective purpose of the First
Amendment is thwarted even if the defendant ultimately prevails); Info. Sys. Networks v. City of
Atlanta, 281 F.3d 1220, 1228 (11th Cir. 2002) (affirming summary judgment for defendant on
libel claim arising out of statement of opinion); Time, Inc. v. McLaney, 406 F.2d 565, 566 (5th
Cir. 1969) (reversing judgment denying motion for summary judgment and remanding case with
directions that summary judgment for defendant be entered; the failure to dismiss a libel suit
might necessitate long and expensive trial proceedings, which, if not really warranted, would
themselves offend . . . [First Amendment principles] because of the chilling effect of such
litigation.); Klayman v. City Pages, 2015 WL 1546173, at *1213, *7 (M.D. Fla. Apr. 3, 2015)
(granting summary judgment to media defendant in libel action for lack of actual malice), appeal
docketed, No. 15-12731-GG (11th Cir. June 18, 2015); Stroud v. Bank of Am., 886 F. Supp. 2d
1308, 1316 (S.D. Fla. 2012) (granting defendant summary judgment on libel claims because
plaintiff failed to adduce evidence of falsity, malice, or willful intent); Dubai World Corp. v.
11

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One additional point on modifying the Scheduling Order is warranted. From the outset,
Plaintiff, through his counsel, has continuously stressed that Plaintiffs health is failing and that
therefore expediting this action is needed. While there is no dispute that he suffered a stroke
around May 2014 and continues to receive outpatient rehab, Plaintiff, despite Defendants
requests, has not produced any medical proof showing that Plaintiffs health is, in fact,
precarious, and his conduct belies any such suggestion. In just the six months since he filed this
lawsuit, he has: filed several lengthy declarations in this action; sought to serve as a witness in
his counsels case in D.C.; unsuccessfully sought to intervene in a case in Arizona;
unsuccessfully sought mandamus against a federal judge in Arizona; filed a libel, breach of
fiduciary duty, professional malpractice, intentional infliction of emotional distress suit against
the ACLU in this district; and filed disciplinary complaints against the ACLU-lawyer
defendants. Defs. Resp. Oppn Pl.s Mot. Order to Show Cause 1 n.1, ECF No. 51; Montgomery
v. ACLU, 1:15-cv-22452-KMM (S.D. Fla. filed June 30, 2015); Reply of Mr. Klayman in Opp.
of Pls. to Counsels Mot. to Appear Pro Hac Vice, Melendres v. Arpaio, No. 2:07-cv-02513GMS, ECF No. 1223, at 6 (D. Ariz. filed Aug. 10, 2015). Indeed, the day before he filed this
suit, he represented himself in a lengthy hearing before the U.S. Tax Court. ECF No. 94, at 4,
n.20, & Ex. 10. And just this week, on August 12, the judge presiding over Montgomerys
criminal prosecution in Nevada made clear the courts frustration over the lack of medical

Jaubert, 2011 WL 579213, at *14 (S.D. Fla. Feb. 9, 2011) (granting counterclaim-defendant
summary judgment on libel claim because limited-purpose public figure failed to adduce
sufficient evidence of actual malice); Krohngold v. Natl Health Ins. Co., 825 F. Supp. 2d 996
(M.D. Fla. 1993) (granting summary judgment for defendant in libel action where no genuine
issue of material fact whether the statement was false); Stewart v. Sun Sentinel Co., 695 So. 2d
360, 363 (Fla. Dist. Ct. App. 1997) ([P]retrial dispositions are especially appropriate because
of the chilling effect [libel] cases have on freedom of speech).

12

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documentation that Montgomerywho was still in Washington statewas too ill to travel to
appear in Nevada on August 12.
[W]e were told basically the same thing back in mid-May of this
year, so the Court has some concerns that we still dont have the
paperwork to substantiate those medical issues.
Ex. B, Tr. 2:2225. That skepticism is only underscored by the representation on August 13,
2015, by Plaintiffs counsel in this case, that Montgomery is available to sit for deposition in
Miami in his own lawsuit just eight days later, on August 20, and his rejection of any extension
of that date to allow for a ruling on vital discovery that Plaintiff has withheld.
Without any new information substantiating Plaintiffs health claims, and in light of
Plaintiffs repeated participation in court proceedings across the country this year, Plaintiff will
not be prejudiced by extending the current deadlines by just a few months. In contrast, absent an
extension, Defendants would be substantially prejudiced in their ability to defend the lawsuit
Plaintiff chose to bring.
IV.

CONCLUSION
For these reasons, Defendants respectfully request a modest modification of the

Scheduling Order consistent with the dates Defendants propose herein.

Certificate of Good-Faith Conference;

Conferred But Unable to Resolve the Issues Presented in the Motion
In accordance with Local Rule 7.1(a)(3)(A), the undersigned certifies that Defendants
counsel has conferred with all parties or non-parties who may be affected by the relief sought in
this motion in a good-faith effort to resolve the issues but has been unable to resolve the issues.
As requested by Plaintiffs counsel, the e-mails showing this conferral are attached hereto as
Exhibit A.
s/Brian W. Toth

13

Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 14 of 14

Dated: August 14, 2015

Respectfully submitted,

s/Brian W. Toth
Sanford L. Bohrer
Florida Bar No. 160643
sbohrer@hklaw.com
Brian W. Toth
Florida Bar No. 57708
brian.toth@hklaw.com
HOLLAND & KNIGHT LLP
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Telephone: (305) 374-8500
Fax: (305) 789-7799
and
Laura R. Handman (admitted pro hac vice)
laurahandman@dwt.com
Micah J. Ratner (admitted pro hac vice)
micahratner@dwt.com
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Ave., NW, Suite 800
Washington, D.C. 20006
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants

CERTIFICATE OF SERVICE
I certify that on August 14, 2015, I filed this document with the Clerk of Court using
CM/ECF, which will serve this document on all counsel of record.
s/Brian W. Toth

14

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EXHIBIT A

Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 2 of 5

Toth, Brian W (MIA - X27510)
From:
Sent:
To:
Cc:
Subject:

Larry Klayman <leklayman@gmail.com>

Thursday, August 13, 2015 6:52 PM
Toth, Brian W (MIA - X27510)
Dina James; Handman, Laura; Bohrer, Sandy (MIA - X27678); Ratner, Micah
Re: Montgomery v. Risen -- motion to modify the scheduling order

Dear Mr. Toth:

We stand by the position outlined in our earlier email of today.
In addition, we are not available on September 11 or that weekend. In the interim, our schedule changed, as is
normal for litigators and trial lawyers, given our various commitments. Thus, if you do not decide to proceed
with Mr. Montgomery's deposition on the previously agreed date of August 20, 2015, given that Mr.
Montgomery and his counsel relied on your "good faith" representations that you would take his deposition then
and he thus put off an operation for his severe medical condition to be present and we as counsel blocked off
our schedule, made logistical arrangements and also rearranged commitments in various local, then it is our
position that Defendants will have forfeited their "rights" to depose Mr. Montgomery.
Its clear that your objective with all of this late maneuvering is to delay the trial. This has been your objective
from the very first, and that became clear to the judge at the first status conference. That is why we have the
pretrial and trial schedule that is currently in effect. The judge did not want any delay particularly given Mr.
Montgomery's serious medical condition.
Please attach this email as well to any motion you may decide to file, which in my view would be nonmeritorious and frivolous as there is more than enough time to complete discovery before the current deadline.
Larry Klayman, Esq.
Counsel for Mr.Montgomery
On Thu, Aug 13, 2015 at 2:53 PM, <Brian.Toth@hklaw.com> wrote:
Mr. Klayman,

We will attach your e-mail to our motion to modify the scheduling order.

As for Mr. Montgomerys deposition, we will not be going forward on August 20. You have objected to producing
critical discovery to us in large part, but not in whole part, Mr. Montgomerys software that is at the heart of his
complaint. We have tried to work this issue out with you and have followed all procedures to have it resolved before
Judge Goodman. That will occur on August 27 or shortly thereafter, and it is unfair (and inefficient) to force us to
depose Mr. Montgomery without having this important matter resolved and without the benefit of discovery that we
believe we are entitled to under the law.

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We again ask that you hold September 11 as an available date, in the event that the court does not modify the
schedule. And we again state that we would be willing to depose Mr. Montgomery in a place convenient for him
Miami, Washington, or D.C. In that regard, you wrote on July 16 that you would be willing to offer him to be deposed
any day from September 1 through September 11, and you also offered going into the following week for his
deposition. If September 12 or 13 (a Saturday and Sunday) would be more convenient, then that would be fine for us,
too.

We stress, however, that if the court extends the deadlines, then we will likely seek to depose him at a later time to
provide time for Judge Goodman to rule on your objections and, if he orders production of the software and related
information, for us and our expert to review it before deposing him.

Please let us know by August 19 whether you will hold September 11 (or a date thereabouts) open for his deposition. If
not, we will seek to raise this issue with Judge Goodman on August 27.

Regards,

Brian Toth | Holland & Knight

Associate
Holland & Knight LLP
701 Brickell Avenue, Suite 3300 | Miami, FL 33131
Phone 305.789.7510 | Fax 305.789.7799
brian.toth@hklaw.com | www.hklaw.com
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From: Larry Klayman [mailto:leklayman@gmail.com]

Sent: Thursday, August 13, 2015 9:55 AM
To: Toth, Brian W (MIA - X27510)
Cc: Dina James; Laura Handman; Bohrer, Sandy (MIA - X27678); MicahRatner@dwt.com
Subject: Re: Montgomery v. Risen -- motion to modify the scheduling order

Please attach this email to any motion you may file to fully and appropriately describe our opposition to
your attempts to delay this case for the court.
Larry Klayman
On Aug 13, 2015 6:29 AM, "Larry Klayman" <leklayman@gmail.com> wrote:
Ladies and Gentlemen
2

Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 4 of 5

We oppose your proposed modification of the pretrial and trial deadlines.
It is also inappropriate to not take plaintiff's deposition and attempt to reset it at this late date after he
and his counsel have arranged their schedules and made plans at great expense and time and agreed
with you on the date. In the unlikely event you prevail on any motion to compel and we plan on filing
one as well there is plenty of time to undertake further discovery within the parameters of the current
and in effect discovery deadline.
Accordingly your suggested modification is just your latest attempt to delay adjudication of this case
attempting to take advantage of plaintiff's serious and severely debilitating and potentially fatal brain
anneurism and related illnesses. Previously you tactically attempted to stay all discovery to delay not
just discovery but the trial date.
The judge made it clear that he wants the case to proceed expeditiously and we intend to do so. We
therefore look forward to producing plaintiff for deposition In Miami in defendants' counsels offices at
the previously agreed time on August 20 and will strenuously oppose your proposed modification of
the pretrial and trial schedule.
Please govern yourselves accordingly.
Larry Klayman
Counsel for Plaintiff
On Aug 12, 2015 12:40 PM, <Brian.Toth@hklaw.com> wrote:
Mr. Klayman,

Because we are at a discovery impasse with Plaintiffs written objections and production, and
because we will not have resolution thereof until at least August 27, it is now apparent that we will
need to seek the modification of Judge Martinezs scheduling order to extend the discoverycompletion date and, with it, the dates that follow.

We propose the following:

All discovery to be completed by November 20, 2015.

All dispositive motions to be filed by December 4, 2015.

Calendar call to be held on April 5, 2016, for the two-week trial period beginning
April 18, 2016.

Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 5 of 5

These are modest modifications, and would put the remainder of this case comfortably within the
standard track described in the Local Rules.

Finally, again because we have not had resolution on the written objections and production, we will
be adjourning Mr. Montgomerys deposition until a later date. We ask that you please hold
September 11 for his deposition (if the court does not extend the deadlines). But if the court does
extend the deadlines, then we will likely schedule Mr. Montgomerys deposition for a later date -after he produces the software and our expert has an opportunity to analyze it.

Please let us know by noon tomorrow whether you oppose any or all of the relief sought.

Regards,

Brian Toth | Holland & Knight

Associate
Holland & Knight LLP
701 Brickell Avenue, Suite 3300 | Miami, FL 33131
Phone 305.789.7510 | Fax 305.789.7799
brian.toth@hklaw.com | www.hklaw.com
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Case 1:15-cv-20782-JEM Document 100-2 Entered on FLSD Docket 08/14/2015 Page 1 of 5

EXHIBIT B

Case 1:15-cv-20782-JEM Document 100-2 Entered on FLSD Docket 08/14/2015 Page 2 of 5

TRAN

DISTRICT COURT
CLARK COUNTY, NEVADA
* * * * *
.
THE STATE OF NEVADA,
.
CASE NO. C-268764
.
Plaintiff,
.
DEPT. NO. X
.
vs.
.
TRANSCRIPT OF
.
PROCEEDINGS
DENNIS L. MONTGOMERY,
.
.
Defendant.
.
. . . . . . . . . . . . . . .
BEFORE THE HONORABLE JUDGE WALSH, DISTRICT COURT JUDGE
STATUS CHECK
TUESDAY, AUGUST 12, 2015
APPEARANCES:
FOR THE STATE:

THOMAS MOSKEL, ESQ.

Deputy District Attorney

FOR THE DEFENDANT:

SHAUNA J. BACHMAN, ESQ.

Deputy Public Defender

COURT RECORDER:

TRANSCRIPTION BY:

VICTORIA BOYD
District Court

VERBATIM DIGITAL REPORTING, LLC

Englewood, CO 80110
(303) 798-0890

Proceedings recorded by audio-visual recording, transcript

produced by transcription service.

Case 1:15-cv-20782-JEM Document 100-2 Entered on FLSD Docket 08/14/2015 Page 3 of 5

2
1

LAS VEGAS, NEVADA, TUESDAY, AUGUST 12, 2015, 9:15 A.M.

2
3

THE CLERK:
Montgomery.

4
5

Thomas Moskel for the State, Your

MS. BACHMAN:

Shauna Bachman on behalf of Mr.

Montgomery.

8
9

MR. MOSKEL:
Honor.

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7

-- 764, State of Nevada vs. Dennis

And, Your Honor, I'm sorry, this is Mr. Paulson's

case.

I would ask that you waive his client's appearance.

10

Mr. Montgomery is still in Washington state and is unable to

11

travel because he is suffering from the effects of his stroke.

12

He's working on getting a letter from his doctor, but he needs

13

to get an appointment.

14

Check on Wednesday so that he can update the Court about what

15

happened with the letter.

16

THE COURT:

17

MR. MOSKEL:

Mr. Paulson's requesting a Status

What's the State's position, Mr. Moskel?

No objection to that, Your Honor.

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is out of custody.

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O'Brien today and we're just looking for some verification

20

of --

21

We're not in a hurry.

THE COURT:

Okay.

He

I talked to Mr.

I'll set it over Wednesday, Ms.

22

Bachman, but we were told basically the same thing back in

23

mid-May of this year, so the Court has some concerns that we

24

still don't have any paperwork to substantiate those medical

25

issues.

Verbatim Digital Reporting, LLC 303-798-0890

Case 1:15-cv-20782-JEM Document 100-2 Entered on FLSD Docket 08/14/2015 Page 4 of 5

3
1
2

MS. BACHMAN:

I'll make a note of that, that the

Court's concerned.

THE COURT:

One week.

THE CLERK:

Okay.

5
6

August 19th at 8:30.

(Proceeding concluded at 9:16 a.m.)

*

7
8
9
10
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12
13
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16
17
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Verbatim Digital Reporting, LLC 303-798-0890

Case 1:15-cv-20782-JEM Document 100-2 Entered on FLSD Docket 08/14/2015 Page 5 of 5

CERTIFICATION

I CERTIFY THAT THE FOREGO I NG IS A CORREC T TRANSC RI PT FROM THE

AU DI O- VIS UAL RECORD I NG OF THE PROCEEDINGS IN THE ABOVE

ENTI TLED MATTER .

AFFIRMATION

I AFFIRM THAT THIS TRANSCRIPT DOES NOT CONTAIN THE SOCI AL

SECUR ITY OR TAX IDENTIFICATI ON NUMBER OF ANY PERSON OR ENTI TY .

Verbatim Digital Reporting, LLC

Englewood, CO 80110

(303) 798-0890

Verbatim Digital Reporting , LLC 303-798-0890

Case 1:15-cv-20782-JEM Document 100-3 Entered on FLSD Docket 08/14/2015 Page 1 of 6

EXHIBIT C

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