UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 15-cv-20782-MARTINEZ/GOODMAN DENNIS MONTGOMERY, Plaintiff, v. J AMES 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, Florida33131 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 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 1 of 14I.INTRODUCTION AND LOCAL RULE 7.1(b)(2) REQUEST FOR HEARING In accordance with Federal Rule of Civil Procedure 16(b)(4), Defendants J ames 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 J udge 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 J udge 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 2 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 2 of 14any 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 J oint 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 J oint Scheduling Report and J oint Proposed Scheduling Order. ECF No. 47. Therein, Plaintiff again pushed an aggressive 1 See Emails between parties counsel, attached hereto as Exhibit A. 3 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 3 of 14timeframe, 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] J anuary 25, 2016, as the deadline for completing discovery, and J une 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 J une 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. 4 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 4 of 14(the written discovery requests). On J uly 1 Plaintiff served his written responses and objections thereto. They are wholly inadequate. In clear violation of J udge 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 J udge Goodmans discovery procedures. On J uly 2 Defendants counsel e-mailed Plaintiffs counsel to schedule a meet-and-confer phone call, and on J uly 6 and on J uly 8 the parties counsel had phone calls to try to resolve the objections. Only limited progress was made. On J uly 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 J udge Goodmans attention. On J uly 16 Defendants counselafter determining available dates for discovery calendare-mailed Plaintiffs counsel to schedule a hearing on J uly 31. Plaintiffs counsel confirmed his availability the next day, but, by then, J uly 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, J udge Goodman continued the hearing owing to unforeseen circumstances of his own. And although J udge Goodmans chambers offered August 13 to reschedule, Plaintiffs counsel was 5 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 5 of 14unavailable; 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 J udge Goodman. Id. at 13. Plaintiffs failure to comply with his discovery obligations has impeded Defendants ability adequately and fairly to depose Plaintiff. During the J uly 6 meet-and-confer phone call, Defendants counsel raised scheduling Plaintiffs deposition, and followed up with an e-mail on J uly 9, seeking to schedule the deposition for mid-Augusttrusting and expecting that Defendants would have the information needed to conduct a thorough and fulsome depositionand proposing various dates and locations convenient to Plaintiff. Citing Plaintiffs health, Plaintiffs counsel twice put off responding with actual dates, and only on J uly 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 Touhy3 regulations, and will be particularly time-consuming and complex. Plaintiffs former business partners and employees are scattered in California, Nevada, and Washington. ECF No. 52-30, at 36. 3 U.S. ex rel. Touhy v. Ragan, 340 U.S. 462 (1951). 6 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 6 of 14Whats 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 J une 4 and in response to Plaintiffs discovery requests (served on J uly 6) on August 10 and 11. Plaintiff deposed Defendant J ames Risen on J une 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. J une 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.). 7 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 7 of 14Consistent 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 J une 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 J udge 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 4 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. 8 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 8 of 14software. 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 (J une 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 J udge 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 5 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 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 9 of 14and 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 dispositive-motions 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 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 10 of 14Defendants 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 dispositive-motion 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. 7 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. J une 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 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 11 of 14One 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 J une 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-02513-GMS, 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 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 12 of 14documentation 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 13 of 14Dated: August 14, 2015Respectfully 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 Case 1:15-cv-20782-JEM Document 100 Entered on FLSD Docket 08/14/2015 Page 14 of 14

EXHIBIT A Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 1 of 51Toth, Brian W (MIA - X27510)From: Larry Klayman Sent: Thursday, August 13, 2015 6:52 PMTo: Toth, Brian W (MIA - X27510)Cc: Dina James; Handman, Laura; Bohrer, Sandy (MIA - X27678); Ratner, MicahSubject: Re: Montgomery v. Risen -- motion to modify the scheduling orderDear 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 presentand 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 non-meritorious 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, 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.

Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 2 of 52We 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________________________________________________ Add to address book | View professional biographyFrom: 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" wrote: Ladies and Gentlemen Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 3 of 53We 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 butthe 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, 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 discovery-completion 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 4 of 54These 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________________________________________________ Add to address book | View professional biography

NOTE: This e-mail is from a law firm, Holland & Knight LLP (H&K), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality. Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 5 of 5

EXHIBIT B Case 1:15-cv-20782-JEM Document 100-2 Entered on FLSD Docket 08/14/2015 Page 1 of 5TRAN DISTRICT COURTCLARK COUNTY, NEVADA* * * * *.THE STATE OF NEVADA, .CASE NO. C-268764 . Plaintiff,.DEPT. NO. X.vs..TRANSCRIPT OF .PROCEEDINGSDENNIS L. MONTGOMERY,. . Defendant.. . . . . . . . . . . . . . . .BEFORE THE HONORABLE JUDGE WALSH, DISTRICT COURT JUDGESTATUS CHECKTUESDAY, AUGUST 12, 2015APPEARANCES:FOR THE STATE: THOMAS MOSKEL, ESQ. Deputy District AttorneyFOR THE DEFENDANT: SHAUNA J. BACHMAN, ESQ. Deputy Public Defender

COURT RECORDER: TRANSCRIPTION BY:VICTORIA BOYDVERBATIM DIGITAL REPORTING, LLCDistrict Court Englewood, CO 80110(303) 798-0890Proceedings recorded by audio-visual recording, transcriptproduced by transcription service.Case 1:15-cv-20782-JEM Document 100-2 Entered on FLSD Docket 08/14/2015 Page 2 of 521 LAS VEGAS, NEVADA, TUESDAY, AUGUST 12, 2015, 9:15 A.M.2 THE CLERK:-- 764, State of Nevada vs. Dennis3 Montgomery.4 MR. MOSKEL:Thomas Moskel for the State, Your5 Honor.6 MS. BACHMAN:Shauna Bachman on behalf of Mr.7 Montgomery.8 And, Your Honor, I'm sorry, this is Mr. Paulson's9 case.I would ask that you waive his client's appearance. 10 Mr. Montgomery is still in Washington state and is unable to11 travel because he is suffering from the effects of his stroke. 12 He's working on getting a letter from his doctor, but he needs13 to get an appointment.Mr. Paulson's requesting a Status14 Check on Wednesday so that he can update the Court about what15 happened with the letter.16THE COURT:What's the State's position, Mr. Moskel?17 MR. MOSKEL:No objection to that, Your Honor.He18 is out of custody.We're not in a hurry.I talked to Mr.19 O'Brien today and we're just looking for some verification20 of -- 21THE COURT:Okay.I'll set it over Wednesday, Ms.22 Bachman, but we were told basically the same thing back in23 mid-May of this year, so the Court has some concerns that we24 still don't have any paperwork to substantiate those medical25 issues.Verbatim Digital Reporting, LLC 303-798-0890Case 1:15-cv-20782-JEM Document 100-2 Entered on FLSD Docket 08/14/2015 Page 3 of 531 MS. BACHMAN:I'll make a note of that, that the2 Court's concerned.3THE COURT:One week.4 THE CLERK:Okay.August 19th at 8:30.5 (Proceeding concluded at 9:16 a.m.)6 * * * * * 78910111213141516171819202122232425Verbatim Digital Reporting, LLC 303-798-0890Case 1:15-cv-20782-JEM Document 100-2 Entered on FLSD Docket 08/14/2015 Page 4 of 54 CERTIFICATION I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE AUDIO- VISUAL RECORDI NG OF THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. AFFIRMATIONI AFFIRM THAT THIS TRANSCRIPT DOES NOT CONTAIN THE SOCI ALSECURITY OR TAX IDENTIFICATION NUMBER OF ANY PERSON OR ENTITY .Verbatim Digital Reporting, LLC Englewood, CO 80110 (303) 798-0890 VerbatimDigital Reporting, LLC303-798-0890 Case 1:15-cv-20782-JEM Document 100-2 Entered on FLSD Docket 08/14/2015 Page 5 of 5

EXHIBIT C Case 1:15-cv-20782-JEM Document 100-3 Entered on FLSD Docket 08/14/2015 Page 1 of 6Case 1:15-cv-20782-JEM Document 100-3 Entered on FLSD Docket 08/14/2015 Page 2 of 6Case 1:15-cv-20782-JEM Document 100-3 Entered on FLSD Docket 08/14/2015 Page 3 of 6Case 1:15-cv-20782-JEM Document 100-3 Entered on FLSD Docket 08/14/2015 Page 4 of 6Case 1:15-cv-20782-JEM Document 100-3 Entered on FLSD Docket 08/14/2015 Page 5 of 6Case 1:15-cv-20782-JEM Document 100-3 Entered on FLSD Docket 08/14/2015 Page 6 of 6