Last Updated: Jan. 15, 2016
January | February | March | April | May | June | July | August | September | October | November | December
| « 2014 |
2016 »
|
IMPORTANT NOTE
Testimony and exhibits in the Melendres proceedings have revealed a substantial amount of additional information regarding the Seattle Operation. This information is currently being incorporated first in the WYE Timeline - in 2013, 2014 and 2015. The "new information is clearly marked as follows:
★ - Testimony and exhibits actually admitted in the proceedings) and/or a
📄 - Seattle Operation related documents identified by Plaintiffs as potential exhibits in the proceedings.
The Seattle Operation information will be incorporated into this timeline in the near future (as time permits) but, in the meantime, if you seek additional information specifically the Seattle Operation, please see the WYE Timeline - beginning at Oct. 18, 2013 and through 2015.
Jan. 5, 2015
Cold Case Posse. Birther debunker/blogger Dr. Conspiracy publishes “DARPA,” in which he speculates that the “deeper darker” investigation repeatedly referenced by Mike Zullo and Carl Gallups is the same MSCO investigation (i.e., the Seattle Operation) reported by Stephen Lemons of the Phoenix New Times in June 2014.
Jan. 14, 2015
Klayman sends letter to Houghton Mifflin Harcourt alleging that Risen’s book is defamatory re: Montgomery. See Montgomery v. Risen ECF 44 at 87.
Jan. 21, 2015
Seattle Operation. Stephen Lemons reports that Arpaio has been bragging about investigating Judge Snow (the Melendres judge) and his family according to “credible sources.” Regarding the Seattle Operation/Montgomery investigation that Lemons reported on in June 2014, Lemons notes that MCSO has “over and over again” denied his requests for records “because of an ‘ongoing criminal investigation.’” See Stephen Lemons, “Arpaio's End Game: Judge Snow Sets the Sheriff's Contempt Hearing for April, But Joe Has Some Tricks Up His Sleeve,” Phoenix New Times, Jan. 21, 2015.
Jan. 24, 2015
Cold Case Posse. Carl Gallups posts the following on Facebook:
. . . "I have spoken at length with Mike Zullo. He says that he and the sheriff are still proceeding with the investigation and their plans to release the information. They believe it will be soon. HOWEVER, as reported before - they have been involved in jumping some huge legal hurdles that will enable them to bring this info forward. They are still involved in one big legal hurdle now. They hope to have it resolved soon. Any major movement in the case coming forward will be announced on Freedom Friday with Carl Gallups (carlGallups.com) and on the PNN internet network."
Jan. 31, 2015
Cold Case Posse. Carl Gallups provides an update on the Arpaio-Zullo Cold Case Posse birther investigation during his Freedom Friday show (PPSimmons, Zullo Update! AND ... Muslim Brotherhood and the Tribulation!, YouTube, Jan. 31, 2015) (layperson’s unofficial transcript):
[~00:20] The bottom line is that Arpaio and Zullo are still moving forward. . . . The criminal investigation is still underway. They've not given up. They've not gone away. . . . Now, I promise. I'm gonna say this again and . . . don't read anything into this, this doesn't mean anything, except it's been my promise from the beginning: as we move forward, if for some reason - and Zullo has not said this, and neither has Arpaio - but if for some reason, this thing doesn't come to pass, then I will be at liberty to tell you a lot more about it and why it didn't come to pass and what alls involved in it.
[~01:18] But in the meantime, it's still headed that way, looks like it's still gonna come to pass, and those are the assurances that I'm getting. But they're just not talking about it publicly. . . .
[~2:31] So Zullo and Arpaio, they're involved in a deep, dark criminal investigation. Let's let them go with it. . . . Now, if it all collapses later, we'll tell you about it. We'll report it. And if it comes forward, we're gonna go with it. Right here. Ok?
Feb. 11, 2015
Criminal Case. During a status check in Montgomery's criminal case pending in Nevada, defense counsel “request[s] to waive [Montgomery’s] presence as he is unable to travel due to recovery from some strokes. Mr. Heshmati provide[s] documentation to the state. Mr. Merback advise[s] this matter has been continued for a year on the same issues.” The Court continues the matter for another status check on May 13, 2015. See Nevada v. Montgomery, No. C-10-268764-1, Feb. 11, 2015 Minutes of Proceedings. (For more info on the criminal matter, see Nov. 10, 2010 and Jan. 8, 2014.)
Feb. 18, 2015
Montgomery is ordered to vacate the Yarrow Point, Washington house by "noon, April 1, 2015." See Flynn v. NV Mortgage, ECF 66.
Feb. 23, 2015
Montgomery v. IRS. During a calendar call in Montgomery's IRS case, he indicates that he is living in Seattle Washington:
[COURT] Why are you in Seattle, Washington? What's your connection to Washington State?
MR. MONTGOMERY: Well, I had a stroke up here. I had a house both in California and in Washington, and I had the stroke up here, Your Honor.
THE COURT: I see.
MR. MONTGOMERY: I mean, I've been going -- as I said, I was in the hospital in May and June, I got out sometime in July, but I've been in rehab for nine, ten months. …
See Montgomery v. IRS, Transcript Feb. 23, 2015 Proceedings, as filed in Montgomery v Risen, ECF 94 at Ex. 10 (Aug. 4, 2015) (emphasis added). The U.S. Tax Court thereafter issues an order as follows:
This case is on the Court's February 23, 2015 Los Angeles trial calendar, involves mostly substantiation, and is by a considerable margin the oldest on this docket. Because petitioner has health problems, we held a status conference after calendar call. Petitioner had kept his promise to supply respondent with what documents he had -- and they do seem to support his story of documents seized and in part destroyed by criminal investigators acting under an improvidently granted warrant.* But because these documents were produced to the IRS so close to calendar call, the Court and respondent will need some time to review them. In the meantime, it is
ORDERED that this case is continued.
It is also ORDERED that this division of the Court retains jurisdiction.
See Montgomery v. IRS, Feb. 23, 2015 Order.
*Note: In March 2008, Montgomery sought to avoid court-ordered production of documents and materials in the eTreppid litigation by asserting, under oath, that the FBI had destroyed, damaged, and/or kept some of the materials that it seized during the 2006 searches. After a Sept. 5, 2008 evidentiary hearing -- which was held at his request but at which he failed to appear, and the United States' submission of a post-trial brief on the issue on Sept. 22, 2008, Montgomery entered into a stipulation with the United States on Oct. 2, 2008 that he “do[es] not and will not” institute any court proceeding to challenge the adequacy or completeness of the FBI return of seized property to Mr. Montgomery on March 29 and April 6, 2007, as ordered by this court."
According to a "Fed Ex Tracking" form later produced by Montgomery in litigation, Dennis Montgomery's voter registration form, shipped via Fed Ex from "Cellevue, Washington" on February 20, 2015, is delivered in Miami Florida. See Montgomery v Risen, ECF 52-7, (Ex. 5).
Note: The Fed Ex online shipment tracking system indicates that the package was shipped from Bellevue, not Cellevue. See here and here.
Feb. 24, 2015
Montgomery v. Risen. The day after Montgomery led the U.S. Tax Court to believe he's in Seattle Washington (and less than a week after he is ordered by a Washington Court to vacate a house in Yarrow Point Washington), Montgomery initiates a lawsuit in Florida, asserting that he is a Florida citizen. See Montgomery v. Risen, ECF 1 at ¶ 6. This complaint, filed by Larry Klayman, asserts various defamation and related claims against James Risen, author of Pay Any Price, and related parties. Montgomery also alleges that he is (or attempted to become) a CIA/NSA whistleblower. Id. ¶¶ 54, 77, 240.
Mar. 9, 2015
Montgomery v. Risen. Montgomery files a Notice of Waiver, waiving “any perceived, apparent and/or actual conflict of interest with regard to Mr. Bohrer and Holland & Knight, LLP representing Defendants in this case before the Honorable Cecilia M. Altonaga.” ECF 5 (PDF).
Judge Altonaga recuses herself from the case; it is reassigned to Judge Jose E. Martinez. ECF 6.
According to a later-filed declaration by opposing parties' counsel, a March 9, 2015 "Lexis/Nexis Accurint Comprehensive Report on Dennis Lee Montgomery, indicated that "Montgomery does not own property, have a driver's license, or pay taxes in Florida, and has not registered to vote in Florida." See Montgomery v Risen, ECF 25-1 (Declaration of Laura Handman).
Montgomery, however, will later assert that Handman's Declaration was inaccurate and that Montgomery "is registered to vote and has a permanent residence in in Miami-Dade County, Florida (along with a Miami telephone number)." See Montgomery v Risen, ECF 40. Then again, he apparently later admits (during his Aug. 20 deposition) that he is merely using a "room in a friend's apartment. The friend is there and he will pay rent as needed, but he hasn't paid any rent. He lives in Washington State." See Montgomery v Risen, ECF 111-1 at 21 (Transcript of Aug. 21 Hearing).
Mar. 17, 2015
Michael Flynn obtains a Writ of Assistance (i.e., assistance from U.S. Marshals in coordinating/ensuring that the Yarrow Point home where Montgomery has been living at least at some point in the past lived is properly vacated by April 1, 2015) from a federal judge in Washington. See Flynn v. Montgomery Writ, ECF 3.
Mar. 20, 2015
Klayman files motion seeking a Montgomery ex parte interview etc. in Klayman v. Obama, claiming Montgomery is a CIA/NSA whistleblower. Klayman v. Obama, ECF 129.
Mar. 24, 2015
The Writ of Assistance obtained by Micheal Flynn against "Dennis and Brenda Montgomery, all occupants of 3812 94th Ave NE, Yarrow Pt" Washington is served "on the individual... at the address shown above." See Flynn v. Montgomery Writ, ECF 4.
Montgomery v. Risen. Montgomery files an Emergency Motion for Status Conference, seeking to “discuss methods of expediting this lawsuit at the earliest practicable date to ensure that crucial information in the form of Plaintiff’s testimony is not lost as a result of his failing health.” ECF 9 (PDF).
Mar. 25, 2015
Montgomery v. Risen. Judge Martinez grants Montgomery’s Emergency Motion for Status Conference while noting that Klayman failed to follow local rules. ECF 11. He sets a hearing re the status conference for April 2. ECF 12 (PDF).
Also today, Klayman files a Motion to Reset the Emergency Status Conference (ECF 13) and a Supplement to the Motion (ECF 14 (PDF)). Thereafter, Judge Martinez resets the hearing for April 14. ECF 15.
Apr. 1, 2015
Montgomery v. Risen. Judge Martinez issues an Order Requiring Joint Scheduling Report. ECF 16. Later, at the parties’ request, the judge grants an additional five (5) days, up to and including April 10, 2015, to meet in person to discuss the Joint Scheduling Report. ECF 23.
Apr. 2, 2015
The Writ of Assistance obtained by Micheal Flynn against "Dennis and Brenda Montgomery, all occupants of 3812 94th Ave NE, Yarrow Pt" Washington is served at 12:00 noon "on the individual... at the address shown above." See Flynn v. Montgomery Writ, ECF 5.
Apr. 9, 2015
Seattle Operation. Dennis Montgomery <[email protected]> emails Mike Zullo ([email protected]), re: “Home.” See Melendres ECF 1166 at 25-26:
I am still trying to find a place to live. My life is in chaos since I have no home As soon as I can get into a home and my needs are met, I will continue the work to the best of my ability. You obviously know by now the sheriff enforced an eviction notice on us, and removed us from the Yarrow property. Our situation is precarious at best.
Seattle Operation. Mike Zullo sends email to Dennis Montgomery (and Larry Klayman), with copy to Brian Mackiewicz, in response to Montgomery's email referenced above. See Melendres ECF 1166 at 24-25. In this email, Zullo states as follows (emphasis added):
While I understand your situation to some degree, the truth here is you knew for months you would have to move out. You were in fact contractually obligated and paid a total of 15K weeks ago just prior to vacating the residence as you formally agreed. To portray this event as if you were unceremoniously or undeservingly thrown out of that house really is a stretch.
Looking past that, your condition of not working again until you have a residence is understandable to some extent however, the idea that once again we are at the mercy of you or your circumstance is not going to be something we will be able to contend with much longer. On my end of this you were compensated $10,000 from a charitable organization for a service and software that I have yet to receive in any worthwhile or usable configuration. I will not allow this organization to be victimized. This matter is going to have to be resolved very soon. Additionally, the agreement between you and the Sheriff’s Office to forgo official notification to our contact in DC is now very long in the tooth and unproductive for us, as you have again failed to deliver anything as agreed.
You also recall we have 60 hard drives that you created, now in our custody. The Sheriff’s Office painfully drove them back to AZ as purported evidence of classified information gathered by you. You will recall we had those drives examined and discovered there was absolutely nothing of value on them. To be clear there was nothing of a classified nature contained on any of them and as matter of fact there was evidence of fabrication on numinous levels. Dennis I don’t have to tell you what this smells of do I?
With your pending litigation in FL. You are aware that both Brian and I had met with the defendant that last time we were in DC. He has our business cards. It will only be a matter of time before we are contacted by his attorney. Also in light of your most recent attempt to offer testimony as a WB and the fact that we have a videotaped Free Talk agreement you made with the AZAG and you have breached that agreements as well, this is not something I am prepared to allow to move forward without the proper notifications made on our end under these agonizing circumstances.
Sixteen long months of ZERO s and just empty promises and lip service. Enough…
We are going to allow you one last attempt to honor your agreement with us and set a hard date in the very near future to complete the work as agreed. I will wait to hear from you or Larry . Remember this is going to be a make or break moment. Time is of the essences Dennis…
Montgomery v. Risen. Risen and co-defendants file a Motion to Dismiss Montgomery’s Complaint (a) Due to Lack of Jurisdiction and (b) Failure State a Claim, and a Motion to Change Venue. ECF 25. Risen also files a Motion to Dismiss the Complaint Under the D.C. Anti-SLAPP Statute. ECF 26 (PDF).
Apr. 13, 2015
Montgomery v. Risen. Defendants file a Notice of Position regarding issues raised in Montgomery’s Emergency Motion for Status Conference. ECF 29 (PDF).
Apr. 14, 2015
Montgomery v. Risen. Judge Martinez presides over the scheduled status conference. ECF 30 (Minute Entry); ECF 36 (Transcript).
Apr. 16, 2015
Seattle Operation. Mike Zullo [1tick@earthlinknet] emails Larry Klayman, “David Webb” and Brian Mackiewicz. This email is a “reply” to the April 9 email from Zullo referenced above. See Melendres ECF 1166 at 23-24; see also June 29, 2014 for notes re: "David Webb." In this email, Zullo states as follows.
Larry,
Per our phone conversation , I need to know Dennis’s intentions on moving forward on a timely basis and honor his agreement with us and set a hard date to complete the paid work on the BC* as he agreed to perform. This work has nothing to do with the other issues he is dealing with and as of last month he was one week away from completion. That week as others came and went. Open ended e mails of promises of continued efforts simple are no longer reliable given the history. Please let me know of his intentions to provide a completion date in the very near future.
Mike
*Note: BC likely refers to “birth certificate” – i.e., the so-called investigation into Obama’s birth certificate that Zullo and Arpaio have been publicizing since 2011.
Montgomery v. Risen. Defendants file a Certificate of Interested Parties/Corporate Disclosure Statement. ECF 31. Montgomery files a Certificate of Interested Parties. ECF 32 (PDF).
Apr. 20, 2015
Seattle Operation. Mike Zullo <1tick@earthlinknet> emails ? recipient(s). This email is a “reply” to the April 16 email from Zullo to Larry Klayman, “David Webb,” and Brian Mackiewicz. See Melendres ECF 1166 at 23-24. In this email, Zullo states as follows:
Larry,
This is now my second request asking for a date set for the completion of the work Dennis Montgomery has been promising for over 16 months. Mr. Montgomery’s behavior and lack of performance flies in the face of his numerous promises pledging to complete the work.. This is especially concerning given the face that Mr. Montgomery needs validation like a drowning man needs oxygen. His behavior simply erodes whatever thread of credibility he may have left. In fact as of this date, our experience dealing with Mr. Montgomery mirrors what has been written about him.. It is apparent to us that this is just a game of running the clock in the hope Montgomery can position himself as a “Whistle Blower” with some jurisdiction and with your help get out from under his obligation to the us. In our opinion Montgomery does not qualify under Federal Whistle Blower protections. A risky game….
I would like a response by close of business on Wednesday April 22nd, 2015. If we do not here from you or your client we will complete final reports, close the matter and make the appropriate notifications.
Larry we have bent over backwards to help your client and you however, it appears that you have changed course and are no longer work to our mutual benefit.
Mike
Larry Klayman responds to the above email from Mike Zullo, copying Dennis Montgomery and "David Webb." See Melendres ECF 1166 at 23. Klayman states as follows: "I'll call tomorrow best"
Apr. 21-23 2015
Melendres. Judge Snow presides over four-day evidentiary hearing in Melendres. See generally, Stephen Lemons, “Judge Snow Rips the Lid Off an MCSO Riddled With Corruption, Confirming My Reporting in the Process,” Phoenix New Times, April 29, 2015, for a summary of highlights from the four-day proceedings.
Apr. 23, 2015
Seattle Operation | Melendres. During Day 3 of the Melendres contempt hearings, Sheriff Joseph Arpaio testifies in response to questions from plaintiffs and the Court and, during questioning from the Court, Arpaio reveals both the Seattle Operation - for which Montgomery was a "confdential informant." See Melendres, ECF 1027 (Transcript of Proceedings) at 643-57.
For highlights of the day, see Stephen Lemons, “Arpaio Cops to Investigating Federal Judge, Judge's Wife, Confirming New Times Story,” Phoenix New Times, April 24, 2015; Jude Joffe-Block, “Arpaio Admits To Secret Investigation Of Judge's Wife“ and “Arpaio's Admission Of Investigation Into Judge's Wife Stuns Courtroom,”KJZZ, April 23, 2015.
Montgomery v. Risen. Montgomery files a Praecipe Concerning Initial Disclosures. ECF 33 (PDF). In this praecipe, attorney Klayman states that the parties disagree on how to interpret the Court’s Apr. 1, 2015 order and that defendants are seeking to delay the case.
Defendants respond with a Notice re Montgomery’s Notice, attaching recent correspondence with Klayman. ECF 34 (PDF). Defendants also file a Notice of Serving Declaration of Michael F. Kane. ECF 35 (PDF). The attached declaration explains Kane’s process in researching Montgomery’s voter registration status and the reason that Montgomery's alleged February 2015 registration did not appear on the generated report (i.e., because Florida hadn’t updated data with LexisNexis since December 2014). ECF 35-1 (PDF).
Apr. 23-? 2015
Seattle Operation | Melendres. The MCSO produces some, but not all, Grissom Matter and Seattle Operation investigation documents. On April 23, after Arpaio testified to the allegedly Snow-related investigations undertaken by or on behalf of him/MCSO, the Court “stated that a hold should be placed on all records that related to the subject investigations including electronic data, funding of the operation, all phone records, e-mails, reports, etc. The Court next sent the monitor to take possession of those records.” Melendres, Transcript of Apr. 23, 2015 Hearing, ECF 1035 at 1. More than 3,300 pages were apparently produced in the immediate aftermath (id. at 2) along with an external hard drive containing two terabytes of data (id. at 3).
Apr. 24, 2015
Melendres. During Day 4 of the Melendres contempt hearings, Deputy Chief Gerald Sheridan testifies about a variety of matters, including the "Seattle Operation," involving Montgomery. Melendres, Transcript of Apr. 24, 2015 Hearing, ECF 1043, at 998-1008.
Montgomery v. Risen. Defendants file a Notice of Supplemental Authority regarding its Apr. 9 Motion to Dismiss Montgomery’s Complaint Under the C.C. Anti-SLAPP Statute, attaching a copy of the recent D.C. Circuit decision, Abbas v. Foreign Policy Grp., No. 13-7171, ECF No. 1549030 (D.C. Cir. Apr. 24, 2015) (Decision (PDF)). ECF 37 (PDF).
Apr. 27, 2015
Montgomery v. Risen. Montgomery files a Motion to Amend/Correct Complaint. ECF 38 (PDF).
Montgomery also files an Opposition to Defendants' Apr. 9 Motion to Dismiss Complaint under the DC Anti-Slapp Statute (ECF 39) and an Opposition to Defendants' Apr. 9 Motion to Dismiss Complaint for Lack of Jurisdiction, Failure to State a Cause and to Change Venue. See ECF 40 (Motion); ECF 40-1 (Montgomery Declaration).
Apr. 28, 2015
Seattle Operation | Melendres. Larry Klayman emails Michele Iafrate (Arpaio counsel), copying Zullo. Among other things, he admonishes Iafrate for failing to object to Judge Snow's questioning of Arpaio and Sheridan, stating that "[t]he failure to object may foreclose any appeal on these matters." See Melendres, ECF 1198-2 at 4. This email will later be revealed by Plaintiffs in support of their opposition to Klayman's application for pro hac vice admission in the case.
Montgomery v. Risen. Judge Martinez issues order granting Montgomery’s Motion to Amend the Complaint. ECF 41. He also issues an order denying, as moot, Defendants' Motions to Dismiss. ECF 42.
Thereafter, Montgomery’s Amended Complaint is filed. See ECF 44. Montgomery again asserts that he is a citizen of Florida. Id. ¶ 13 ("Dennis L. Montgomery is a natural person, an individual, and a citizen of the United States. He is a citizen of Florida, which as set forth above, is where much of this work has taken place and will continue to take place. He resides at Miami, FL and has a Miami-Dade telephone number of Mr. Montgomery is also registered to vote in Florida and has had multiple and ongoing business dealings within the state of Florida.")
Montgomery also files an Order to Show Cause for Defendants to Produce Documents Pursuant to the Courts Scheduling Order of April 1, 2015. ECF 45.
Apr. 29, 2015
Seattle Operation | Melendres. Arpaio responds to Klayman's April 28 email as follows:
I am represented by Ms. Iafrate in the Melendres matter civilly. I am represented in that case for purposes of possible criminal content [sic], by Mel McDonald. Your e-mail indicates that you represent Mike Zullo and Dennis Montgomery. That would, and does, create a conflict here in Arizona. I want to be sure that you know that you do not represent me in this matter, here in Arizona.
See Melendres, ECF 1198-2 at 3. This email will later be revealed by Plaintiffs in support of their opposition to Klayman's application for pro hac vice admission in the case.
Klayman responds to Arpaio's email, again copying Zullo:
I agree good client and friend. It was never my intention to represent you, as you have Michelle Iafrate. I just wanted to coordinate my representation of Montgomery and Zullo with her. But she did not return my calls and this is frankly not professional and not in yours or anyone's best interests. We should work together for the common good.
See Melendres, ECF 1198-2 at 3. This email will later be revealed by Plaintiffs in support of their opposition to Klayman's application for pro hac vice admission in the case.
Montgomery v. IRS. The U.S. Tax Court hearing Montgomery's IRS case issues an order:
"This case was on the Court's February 23, 2015 Los Angeles trial calendar, involves mostly substantiation, and is by a considerable margin the oldest on this docket. Because petitioner has health problems, we held a status conference after calendar call. Petitioners had supplied respondent with what documents he had -- and they did seem to support his story of documents seized and in part destroyed by criminal investigators acting under an improvidently granted warrant. A review of them does show some support for his position that the government (although not the IRS) destroyed some documents relevant to his case.* The Court spoke with the parties again on April 29, 2015. Petitioners promised to send his new address to respondent and the Court. Respondent promised to provide informal discovery in the form of his administrative file (with any privileged documents not produced noted in a privilege log). The Court promised to put this case on a status-report track for now. It is therefore
ORDERED that respondent file a status report on or before June 29, 2015 describing any progress in this case."
See Montgomery v. IRS, Apr. 29, 2015 Order.
*Note: See Note at Feb. 23, 2015 for summary of information re Montgomery's prior attempts to avoid production of documents and materials by asserting that the FBI destroyed documents during the 2006 search -- as well as his post-evidentiary hearing stipulation that he "do[es] not and will not” institute any court proceeding to challenge the adequacy or completeness of the FBI return of seized property to Mr. Montgomery on March 29 and April 6, 2007, as ordered by this court."
Montgomery v. Risen. Judge Martinez refers Montgomery’s Motion for Order to Show Cause to Magistrate Judge Jonathan Goodman. ECF 46.
May 1, 2015
Montgomery v. Risen. Montgomery files a Rule 16.1 Scheduling Report. ECF 47.
May 3, 2015
Cold Case Posse. On his Freedom Friday show, Carl Gallups discusses Dennis Montgomery and a recent WND article indicating that Supreme Court Justices were targeted by the NSA. He then attempts to tie that information to the Arpaio-Zullo Cold Case Posse birther investigation. See PPSimmons, The Tangled Web of the Zullo Investigation! Carl Gallups Gives the Latest!, YouTube, May 3, 2015. He then states (layperson's unofficial transcript):
[~3:05] But I DO know, I DO know, after just speaking to Zullo just a day or two ago, that the investigation is still ongoing. And the plan to come forward with the information is still first and foremost. … Now, as I said years ago, any of this can change at any time, but now you’re watching some things unfold, and this is the point I’m trying to get to: now you’re beginning to understand when Mike Zullo has been saying for the last months that there are legal hurdles to jump through. You’re beginning to see the tip of the iceberg of that. But now Arpaio’s being drug into court … I’m not at liberty to say how all that’s connected … but but but it’s connected more than likely to all of this in one way or the other. There are connections and inner-connections and it goes deeper than you can imagine I have been told. And then this name comes up in several articles – Dennis Montgomery – and he’s come up before and is he an informant to the Arpaio case, etcetera. So the bottom line is folks, now you’re beginning to get a little whiff, a little smell, a little taste of what Zullo has been trying to say. You know, this is why he can’t come forward and do a bunch of conferences and news conferences and divulge information, because it’s getting so deep, and now we’ve got federal cases and accusations and outing of people and information and, so, just keep your eyes on it. And what I’m allowed to speak, I will.
May 4, 2015
Seattle Operation | Melendres. Judge Snow summarily overrules Arpaio’s “Objection to Court-Ordered Disclosure Procedure.” Regarding the documents, the Court orders the defendants to complete their privilege review and turn over Bates-stamped copies to the monitor and plaintiffs, by the May 8 status conference the following:
“all documents, memoranda, reports, records, notes, e-mails, social media messages, photographs, audio/video recordings, contracts, meeting minutes, timesheets, financial records, or other materials disclosed to the Monitor during the evidentiary hearing that pertain to the Seattle, Washington/Dennis Montgomery and Grissom investigations.”
Melendres, ECF 1046 at 1-2.
May 5, 2015
Criminal Case. During a calendar call in State of Nevada v. Montgomery -- the criminal case pending over Montgomery's alleged attempts to pass bad checks -- Montgomery's counsel asserted that "they are not ready to proceed as [Montgomery] is scheduled for another surgery." The Prosecution did not object but requested updated medical records to substantiate Montgomery's claims. See Nevada v. Montgomery, No. C-10-268764-1, May 5, 2015 Minutes of Proceeding.
Montgomery v. Risen. Judge Martinez issues an order setting trial date and pre-trial schedule, requiring mediation, and referring certain motions to Magistrate Judge. ECF 48. Per the Order, “Amended Pleadings due by 7/23/2015., Discovery due by 9/16/2015., Expert Discovery due by 9/16/2015, Joinder of Parties due by 7/23/2015, Mediation Deadline 9/11/2015, Dispositive Motions due by 9/21/2015, In Limine Motions due by 11/2/2015, Pretrial Stipulation due by 11/10/2015, Calendar Call set for 11/25/2015 at 1:30 PM in Miami Division before Judge Jose E. Martinez, Trial set for 11/30/2015 in Miami Division.” Id.
May 6, 2015
Seattle Operation. Stephen Lemons reports on the December 2013 meeting between Montgomery, MCSO and the Arizona Attorney General's office. See Stephen Lemons,“Arpaio Sought Assistance From Former AG Tom Horne's Office in Dealing With Confidential Informant," Phoenix New Times, May 6, 2015.
May 7, 2015
Melendres. Klayman associate Jonathan Moseley files, in Melendres, a Motion to Intervene (ECF 1057) and Memorandum in Support of Motion to Intervene (ECF 1058) as well as a "Motion to Disqualify Judge G. Murray Snow Under 28 U.S.C. §144" (ECF 1067) -- all on on behalf of Montgomery.
These pleadings will be stricken from the record on May 14 because Moseley is not admitted to practice law in the Arizona Federal District Court.) In the Motion to Intervene, Moseley claims that Montgomery claims that the Court has seized his physical property and intellectual property (e.g., ECF 1057 at 4.)
May 8, 2015
Seattle Operation | Melendres. Judge Snow holds a status conference in the Melendres case. See Transcript of Proceedings, ECF 1086. Among other matters, the Court requires MCSO to notify the CIA regarding documents obtained from Montgomery that he alleged were improperly obtained from the CIA. See Melendres, Order, ECF 1064 at 2.
During the hearing, the Montgomery documents provided to the MCSO are discussed:
THE COURT: * * * [p. 29] Apparently, the materials that you are providing involve records that I -- and, Bob, if I misstate this, tell me -- but I believe the monitor on first cut thinks, based partly on Chief Deputy Sheridan's testimony, there was something I hadn't anticipated. I had not anticipated that Mr. Montgomery would have done a file dump with the MCSO of those files that he apparently procured without authoriza- -- or claims to have procured without authorization from the CIA.
Is that an issue?
MS. IAFRATE: That is an issue, Your Honor.
THE COURT: All right. And in those files, at least according to the initial review of my monitor, there is a number of names, addresses, telephone numbers of individuals. [30] So I'm just going to instruct the parties, I've instructed Ms. Iafrate, and I think she's doing her best to comply, to review this material for attorney-client privilege or work product immunity and do a privilege log, but if she doesn't, but all the other documents she's providing in Bates stamped order, and I gather that we may some need to discuss and work that through to all parties so you're all getting material that has peoples names, addresses, and telephone numbers --
MS. IAFRATE: As well as Social Security numbers and banking documents, Your Honor.
THE COURT: Okay. So there are some banking documents and Social Security numbers. None of that material can be released without authorization of the Court. All right? You can have it. You can review it. You can use it in preparing for this action. But you cannot review it -- or you cannot release it without authorization of the Court.
Ms. Iafrate, it occurred to me that if in -- and I know that Chief Deputy Sheridan said that -- and again, Chief, you're here. I don't mean to put words in your mouth; I'm just trying to summarize essentially what your testimony was -- that Mr. Montgomery, the MCSO has determined that he was not credible. And again, you can correct that characterization if you wish to.
And so it may be that -- well, I'm sorry. It may be [31] that the doc -- it may be that his assertion that these actually were documents that are a CIA dump are not correct. But it occurs to me that if there is a chance that you believe that you did receive CIA files, if you haven't already done it, if you have not already done it, I'm going to ask you to contact the chief counsel for the CIA and inform him that you received these documents, the date you received these documents, and see if they wish to intervene in this action and take any protective measures with respect to these documents. Do you have any problem doing that?
MS. IAFRATE: I do not have any problem doing that, Your Honor. I think, I think that that would be prudent.
THE COURT: All right. Any objection by anybody if I order Ms. Iafrate to do that?
MR. YOUNG: None from plaintiffs, Your Honor.
MR. WALKER: No objection, Your Honor.
MR. McDONALD: None, Your Honor.
MR. COMO: I have none, Your Honor.
THE COURT: All right. Other issues that you have, Ms. Iafrate.
MS. IAFRATE: I do have other issues regarding -- regarding that production. I received a call from Chief Girvin yesterday very concerned regarding the release of these documents to others rather than the monitors, and I advised them that I was ordered to do so by Your Honor in –[32]
THE COURT: And you were.
MS. IAFRATE: -- docket 1032. So --
THE COURT: No, no, you clearly were. I hadn't anticipated that you had a document dump like this, so you're right, I did make that order.
MS. IAFRATE: So the monitors have received documents well before plaintiffs, because we were given the opportunity to then review them and Bates stamp them and get them in order to send them out to plaintiffs as well as the other attorneys. There is a hard drive that has over two terabytes of data dump on it in sub-folders.
THE COURT: Are these the alleged CIA documents?
MS. IAFRATE: Yes. This has --
THE COURT: Let me ask, are you -- and I'm sorry to interrupt you -- are you able to segregate what the alleged CIA documents are from other documents that were prepared by Mr. Montgomery?
MS. IAFRATE: To a point, Your Honor. This hard drive is the one that's most troubling, and I think that it -- I think that the monitors would agree that it would be the most troubling, not only the content that's on this hard drive is personal in nature to hundreds of thousands of alleged victims of identity theft, but also to duplicate it and get it in a process that would be usable for plaintiffs and other attorneys would require weeks of effort on the part of our third-party [33] vendor, and each shot would be approximately $87,000.
So the paper and the thumb drives and the other information that has been provided to us, we have pushed that out to plaintiffs, but this hard drive that I believe is concerning -- and I won't speak for Chief Girvin, but he expressed concern, too -- this is the bulk of the data dump that I think that we should be most cautious about.
THE COURT: All right. Let me -- well, does anybody have anything else they want to say before I venture some thoughts?
It seems to me that we can do this. In addition to the concern that the monitor raised, he's also indicated to me, at least based on a rough initial look, that there are clearly documents in that file that are very relevant to this litigation. And I believe that the plaintiffs have to have a chance to look at that, and I guess -- so I don't want to prevent them from looking at those things, but I see your point that, you know, this data dump -- whether it's real, whether it's false, whether it's partly real, partly false -- may be very large, and may have lots of information.
Melendres. Judge Snow also issues an order regarding Moseley's Motion for Admittance Pro Hac Vice (to represent Montgomery), indicating the apparent conflict given Klayman's representation of Arpaio in other matters, and attaching Moseley's letter to his order, apparently to ensure that counsel of record had received it. Melendres, ECF 1060.
May 11, 2015
Montgomery (Larry Klayman) files a Petition for Writ of Mandamus in the Ninth Circuit seeking Judge Snow’s disqualification, on behalf of Dennis Montgomery. Emergency Petition for Writ of Mandamus, In re: Dennis Montgomery, No. 15-71433 (9th Cir. May 11, 2015). In this Petition, Klayman asserts that the ownership of Montgomery's intellectual property has already been litigated, citing to 2006 and 2007 Nevada Federal District Court opinions.* See id. at 7.
*Notes: Montgomery's (Klayman's) assertions are - at best - inaccurate even assuming that the "property" at issue in the Seattle Operation is the same property that was subject to the Nevada opinions.
(1) The Search Case decisions upon which Klayman relies expressly did NOT address "ownership" of the property. Rather, the decisions required the FBI to return property seized from Montgomery's home and storage units. Indeed, Judge Pro expressly recognized that "ownership" of (at least some) of the seized property was hotly disputed -- and expressly held that such property remained subject to the preliminary injunction previously entered against Montgomery. See Mar. 19, 2007.
(2) During the ensuing eTreppid v. Montgomery/Montgomery eTreppid litigation, Montgomery revealed that some of the materials seized by the FBI was in fact eTreppid property. See, e.g., May 14, 2008, May 23, 2008, June 10, 2008 (Montgomery testimony), Aug. 18, 2008 (Montgomery testimony).
(3) Montgomery entered into a settlement agreement with eTreppid parties on Sept. 16, 2008. See Sept. 23, 2008 (and links provided therein). Per that agreement, Montgomery (and co-settlers) agreed that the source code at issue would serve as "collateral" for the required payments to eTreppid. See id. Because Montgomery breached the settlement agreement, eTreppid secured rights to the collateral. See, e.g., Nov. 18, 2008, June 18, 2009.
(4) Additionally, as more fully summarized at Dec. 6, 2012, any then-existing intellectual property that Montgomery did still own was part of his bankruptcy estate. That intellectual property, which he valued at $10,000,000 on his schedules, was included in saleable assets that were sold to Michael Flynn - along with all other salable assets, in early 2013.
As such, whatever "intellectual" property was included in the property seized by the FBI and subject to the Search Case orders that Klayman cites belong to either eTreppid or Flynn -- not Montgomery.
May 12, 2015
Melendres - Montgomery Writ Petition. The Ninth Circuit summarily denies Klayman’s Petition for Writ of Mandamus in the Melendres case. Order, In re: Dennis Montgomery, No. 15-71433 (9th Cir. May 12, 2015).
May 13, 2015
Seattle Operation | Melendres. Arpaio's counsel file a “Response to Court’s Inquiry Regarding Ethical Rule 3.3(a)(3) in Melendres. In that document, counsel quotes Arpaio’s testimony that the Phoenix New Times story regarding Montgomery’s investigation into Judge Snow -- i.e., the Seattle Operation -- was untrue, and attaches a declaration from Arpaio in which he unequivocally stated (among other things) that “At no time was Judge Snow or his wife the subject or target of investigation.” Melendres, ECF 1083 and 1083-1.
Seattle Operation. Stephen Lemons posts an article discussing. among other things, MCSO's Detective Brian Mackiewicz's involvement in the Seattle Operation and the amounts of money spent on the operation in payments to Montgomery and other expenses. See Stephen Lemons, “Joe Arpaio Stooge's Adventures in Seattle and His Interest in "Swollen" Genitalia,” Phoenix New Times, May 13, 2015.
Melendres. Klayman associate Jonathan Moseley files, in Melendres, a "Notice of Clarification of Motion for Admittance Pro Hac Vice of Jonathon A Moseley" (ECF 1080) as well as a "Notice of Supplemental Memorandum in Support of" Montgomery's Motion to Intervene (ECF 1081) on behalf of Montgomery.
Notwithstanding Sheriff Arpaio's April 29 message to Klayman that his representation of Montgomery (and Zullo) "would, and does, create a conflict here in Arizona," Moseley states in his PHV "clarification" notice as follows:
Second, the Court may have inquired as to whether the Intervenor Dennis L. Montgomery would be adverse to the Defendants Sheriff Joe Arpaio and the Maricopa County Sheriffs Office (MCSO).
Neither Dennis L. Montgomery nor his counsel are adverse to Sheriff Arpaio, his deputies, the Cold Case Posse, or MCSO in any respect, particularly since this case involves a contempt proceeding over allegations of profiling illegal immigrants.
Third, the Movant also requests to clarify that Dennis Montgomery is also a client of The Klayman Law Firm as shown in the attached pro hac vice motion, attached as Exhibit 3. He is also a client of Freedom Watch in a separate matter.
See Melendres, ECF 1080 at 2. See also Stephen Lemons, "Birther Lawyer Larry Klayman Rushes to the Rescue of Arpaio's 'Snowden'" Phoenix New Times, May 13, 2015.
Criminal Case. During a hearing in State of Nevada v. Montgomery -- the criminal case pending over Montgomery's alleged attempts to pass bad checks -- Montgomery's counsel asserts that Montgomery cannot attend the hearing because of his medical issues and the fact that he is currently in Seattle Washington:
MR. SHAYGAN: Thank you, Your Honor. Your Honor, I ask you to waive my client's presence. I did speak with Mr. O'Brien about it. I showed him some medical records. He's unable to be here. He's currently in Seattle. I will be asking Your Honor for a 90-day status check.
See Transcript of May 13, 2015 Proceedings in State of Nevada v. Montgomery, No. C-10-268764-1, as submitted in Montgomery v Risen, ECF 94 (Ex. 11). The State does not oppose and the Court continues the matter for another status check on Aug. 12, 2015.
May 14, 2015
Seattle Operation | Melendres. Judge Snow holds a status conference in Melendres. See Transcript of Proceedings, ECF 1097. During conference, the Court reportedly expressed “great concerns” about information revealed in the limited number of Seattle Operation-related documents he had reviewed. “Snow said documents confiscated by the monitor suggested that ‘previous testimony offered in this matter [i.e., regarding the Seattle Operation] may have been untruthful.’” Stephen Lemons, “The $50 Million Sherriff,” Phoenix New Times, May 20, 2015; see also Stephen Lemons, “Snow Blasts Arpaio's 'Bogus Conspiracy Theory'," Phoenix New Times, May 15, 2015.
During the hearing, “Snow chose his words carefully, reading from a prepared document when outlining the conspiratorial tenor of Montgomery's claims. Megan Cassidy, “Judge spotlights Arpaio's bizarre 'Seattle Operation',” Arizona Republic, May 14, 2015.
From the Transcript (ECF 1097) at 43-46:
THE COURT: Okay. Now, I'd like to talk about how we're going to go forward in light of these new [Seattle Operation] documents. There are a great number of them, even excluding the data dump. And my monitor has had a chance to look at several of them but far from the totality.
He has shown me several, 50 or so documents, that cause me great concern. And I acknowledge that we're all plowing new ground here. But I'm going to say what those documents show, and I'm going to say that it is a concern that I expect the MCSO to address in the resumption of our May hearing, and I'm going to propose how we proceed.
The documents that I have seen pertain to what appears to be some of the activities of the Seattle operation we involve Dennis Montgomery as a confidential informant. The documents seem to reveal that as at least part of their operations, the Seattle operatives attempted to construct an alleged conspiracy that supposedly involved this Court; one of this Court's former law clerks; Eric Holder, the attorney general of the United States; Lanny Breuer, the Chief Deputy Attorney General of the United States in charge of the criminal division; Phil Gordon, the mayor of Phoenix; and Brian Sands, the executive chief of the MCSO. The purpose of the alleged conspiracy was apparently to covertly investigate the MCSO and deprive the sheriff and the MCSO of the due process of law in this particular case and in a related case brought against the sheriff by the DOJ.
This Seattle operation work product seems to purport that by allegedly using a database of information harvested by the CIA and confiscated by him, Mr. Montgomery was able to reproduce fragments of e-mails that had been sent in 2009 and 2010 between persons within the Department of Justice, Mayor Gordon, and Brian Sands.
As it pertains to this Court, the Seattle operation work product, which was apparently prepared and revised over a number of months, not a few, it began apparently -- the first contact was in September of 2013. There were meetings in December. These documents began being created in December and January, and at least their properties indicate that they have been revised many times over a period of substantial months. Anyway, the documents purport to track telephone calls between this Court, Eric Holder, Lanny Breuer, and Dennis Burke to reproduce those phone calls which occurred years earlier. And between the Court and one of its former law clerks, who apparently allegedly was supposed to have served as this Court's liaison with the Department of Justice regarding this case.
The documents appear to allege or suggest that this Court had contact with the Department of Justice about this case before the Court was ever assigned to it. It further seems to suggest that when Judge Murguia recused from this case, the random selection process of this Court was subverted so that the case was deliberately assigned to this Court. The documents further suggest that thereafter this Court had conversations with Eric Holder and Lanny Breuer about this case, and it also alleges that this Court issued an order to tap the MCSO's phones after being assigned as the judge in this case.
It also seems to allege that this Court had conversations, as I've indicated, with the Department of Justice, through one of its former law clerks as an intermediary.
Now, I will tell you I've looked at these documents closely and I think there are a great deal of problems with them. But I don't intend to put them on the screen and go over those problems because I believe that Sheriff Arpaio and Chief Sheridan have both acknowledged that the materials received from Montgomery are not credible and/or are junk. So I'm not presuming at this point that the MCSO is alleging that anything the documents contain in this respect are true.
If, Ms. Iafrate, you're going to assert that, I will tell you that I'm going to require good faith assertions that any of that information is true, and I have a number of questions that you will have to respond to. Nevertheless, assuming, as I do, that the sheriff and Chief Sheridan both will say that those documents are not credible, the very existence of these documents in the MCSO's files causes this Court some concerns.
In addition to their tendency to suggest that previous testimony offered in this matter may have been untruthful, the Court wonders why, when the MCSO should have been spending their time, money, and resources in implementing its order, they were funding a confidential informant as well as three MCSO deputies or posse members to be in Seattle, Washington, and other places, accruing overtime, travel, and salary expenses, as well as significant technology costs, attempting to construct some bogus conspiracy theory to discredit this Court.
The Court notes that as of the monitor's last report, the MCSO was only 29 percent in compliance with the injunctive order entered a year and a half ago, approximately the same time as this Seattle operation began. There may be some explanation for all of this, I realize that these are only documents in MCSO's file, but I'm going to require you to address that in the hearing that's coming up in June.
* * *
See also Joe Dana, "5 Arpaio judge remarks foreshadowing possible trouble," 12News, May 21, 2015 (colored emphasis added); see also Stephen Lemons, “Snow Blasts Arpaio's "Bogus Conspiracy Theory",” Phoenix New Times, May 15, 2015.
Melendres. Moseley's Motion for Pro Hac Vice Admission is also discussed during this hearing. ECF 1097 at 32-39. Following the hearing, Judge Snow denies Moseley’s Motion for PHV admission (ECF 1057) and strikes Moseley’s motions, filed on behalf of Montgomery to intervene and disqualify the Judge (ECF 1093).
May 15, 2015
Montgomery v. Risen. Defendants file:
- Response in Opposition to Montgomery’s Motion for Order to Show Cause. ECF 51 (PDF).
- Motion to Dismiss Amended Complaint for Lack of Jurisdiction; Motion to Dismiss for Failure to State a Claim; and Motion to Change Venue. ECF 52. Also filed is a Renewed Motion to Dismiss the Amended Complaint Under the Applicable Anti-SLAPP Statute. ECF 53.
May 16, 2015
Cold Case Posse | Seattle Operation. During his Freedom Friday show, Carl Gallups offers his promised “Sheriff Arpaio Zullo Investigation Update.” See PPSimmons, Obama Fraud Case DEEPER & DARKER! Zullo, Arpaio, Gallups, YouTube, May 16, 2015. Among other things, he states the following (layperson’s unofficial transcript):
[~00:50] You[‘re] going to have to listen carefully, kinda have to read in between the lines, but here’s the deal. . . . Go to Google and you can put in these words: “Sheriff Joe Arpaio investigation was intended to discredit, judge says.” . . . .
[~01:40] . . . [T]he judge has outted Arpaio and a confidential informant that Arpaio had . . . been doing some work with . . . the guy’s first name is Dennis . . . his last name’s escaped me right now. … But has some connections to the federal government, CIA, etcetera, etcetera, . . . some information systems, . . . reams of government information and in that information the Judge claimed was some, something pointing to the fact that Arpaio might be, might have been investigating this judge . . . I don’t have time to go into all the details. You need to read that article. . . .
[~2:23]When you read it, you’re going to hear about this confidential informant and you’re gonna hear accusations of Arpaio using a private investigator on this judge, which is not true. Arpaio didn’t run any investigation on this judge. But there are reams and reams, reams and reams, terabytes, terabytes of reams of information that . . . that Arpaio and these guys have, and through this confidential informant and other things. . . .
[~3:00] Apparently, there were people involved in . . . in tracking information, in collecting information on citizens, including judges, and including law enforcement officials, etcetera around the nation. Coming right out of our government offices. And . . . apparently Arpaio and Zullo are privy to a lot of that, privy to a lot of that. . . .
[~3:35] And so, read the article and please remember this: these CIA documents that are being spoken of in this investigation, this . . . court case. Maricopa County Sheriff’s Office didn’t make this stuff up.
[~3:50] This stuff was uncovered through investigation. And you remember all this started with the birth certificate investigation. Okay. That’s why Zullo sometime back was talking about how this thing, why this thing was going deep and dark and there were some legal loopholes and hurdles they had to jump over, and earth shattering evidence and information coming forth. Well, you’re starting to wade around the edges of it now. The edges of it. Go read that article. Read between the lines. Hear what I’m saying. Remember what Zullo said. So folks, this is what we were trying to tell you a long time ago. This is dark. And it gets deep. And it’s gonna get deeper. And probably darker. So you’re gonna want to pay attention to this. And whatever we can tell you, we will, as we move along.
May 19, 2015
Melendres. Jonathan Moseley files (yet another) Motion for Reconsideration of Judge Snow’s denial of his motion for PHV admittance and motion to intervene on behalf of Montgomery. ECF 1112.
Montgomery v. Risen. Defendants file a Motion to Stay Discovery Pending Resolution of Motions to Dismiss. ECF 55. Additionally, Defendants file a Notice Regarding Exhibit 18 to the Declaration of Laura Handman. ECF 54 (PDF).
May 20, 2015
Montgomery v. Risen. Montgomery files a Motion for a Hearing on his Motion for Order to Show Cause. ECF 56.
May 21, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues an Order granting Montgomery’s Motion for Hearing on his Motion for Order to Show Cause. ECF 57.
May 26, 2015
Montgomery v. Risen. Montgomery files a Reply in Support of his Motion for an Order to Show Cause. ECF 58.
May 27, 2015
Montgomery v. Risen. Magistrate Judge Goodman presides over the scheduled hearing on Montgomery’s Motion for Order to Show Cause. ECF 59 (Minute Entry); ECF 67 (Transcript).
May 28, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues an Order. ECF 60. In this order, Judge Goodman notes that:
[I]in response to specific questions from the Undersigned, Plaintiff’s counsel repeatedly and unequivocally represented to the Court that the 64 pages of documents that had been produced are in fact all the documents Plaintiff will be relying on for his claim and are all the documents he has to produce in connection with paragraph 4. On more than one occasion, in response to the Undersigned’s questions, Plaintiff’s counsel reiterated that he would not, other than documents used for impeachment or documents which Defendants or third parties might produce in the future, rely upon any other documents at trial or in any other phase of the case (i.e. summary judgment). [ECF No. 59]. Accordingly, Plaintiff argues that Defendants now have all his responsive documents (i.e., 64 pages) and that since he complied with Judge Martinez’s Order, so should Defendants.
Id. at 3. After discussing the several matters (including the ambiguity of the issue and the aggressive trial schedule), Magistrate Judge Goodman holds:
Nevertheless, in accordance with the unique circumstances presented in this case, namely the aggressive trial schedule [ECF No. 48]3 and Plaintiff’s repeated, unequivocal representations that he already produced all of the documentation he will rely upon in this case (other than impeachment exhibits and documents which might be produced by Defendants or third parties in the future), the Court directs Defendants to produce all of the unprivileged documents that they identified and described in their initial disclosures (made under Federal Rule of Civil Procedure 26).
* * *
Given these circumstances, as well as Plaintiff’s flat‐out representation that he has already produced to Defendants all the documentation that he will put forth himself in this case, pursuant to the broad powers over discovery and case management accorded to the district courts, Defendants shall, by June 4, 2015, produce all of the nonprivileged documents identified in their initial disclosures.
Id. at 4, 7. The order concludes as follows:
Given the nature of the relief granted here, the Undersigned emphasizes that this ruling expressly relies upon Plaintiff’s unequivocal concession that he will not rely upon, at trial or in any other phase of the case, any further documentation in his possession other than the 64 pages he already produced.4
4 Plaintiff’s counsel also similarly advised that he would not seek to introduce any exhibits other than the 64 pages already produced (other than impeachment exhibits and documents which might be produced by Defendants or third parties). Plaintiff’s counsel explained that his strategy about how to handle the trial is significantly different than Defendants’ approach. Apparently, Plaintiff is adopting the “less‐is-more” approach to this case and this trial, as he will not be relying upon any documents other than the 64 pages already produced to prove his claim.
Id. at 8.
May 29 2015
Seattle Operation | Melendres. Judge Snow issues an order as follows: “Earlier this week, the Court-appointed Monitor received a request from the United States Department of Justice to copy the documents and hard drives containing materials that Dennis Montgomery delivered to the Maricopa County Sherriff's Office and that were allegedly harvested from the Central Intelligence Agency. The Department of Justice has requested to copy these hard drives on Tuesday, June 2, 2015 under the supervision of a court-appointed security officer. Should any Party wish to be heard regarding this request or procedure, it should immediately notify the Court with its comments or objections and the reasons therefore.” Melendres, ECF 1134 (PDF).
June 1, 2015
Melendres. Jonathan Moseley files, on behalf of Montgomery, a "Supplement" to his earlier Motion for Reconsideration [1112] and an objection to the Court’s May 29, 2015 Order. ECF 1140.
Montgomery v. Risen. Montgomery files his Opposition to Defendants’ Motions to Dismiss for Lack of Jurisdiction, For Failure to State a Claim, and to Change Venue. ECF 63.
Included with this opposition is a "Second Declaration of Dennis Montgomery." See ECF 63-1. Montgomery asserts, in this Second Declaration that he has attached, as Exhibit 4, the affidavit that he submitted to "then U.S. District Judge Brian Sandoval ... on October 30, 2006."
*Notes: The above statement is untrue. Montgomery did not submit the declaration he attaches as Exhibit 4 on Oct. 30, 2006.
Montgomery did submit a different declaration -- an apparently different version of the document he attaches as Exhibit 4 -- on Nov. 6, 2006 in Montgomery v. eTreppid. (A comparison of the two documents shows that there are several instances of different words/phrases/sentences in the two versions; additionally Exhibit 4 is not signed, while the filed version was signed.)
That declaration, which was signed on Oct. 30, 2006, but not submitted to Judge Sandoval until early November, was later placed on the public docket - in redacted form - on Aug. 3, 2007.
In other words, not only did Montgomery get the document wrong and the date filed wrong -- but he also filed on the public docket a document he knew contained information that the United States had previously designated as classified/state secret information.
Defendants file a Withdrawal of the Motion to Dismiss Amended Complaint Under the Applicable Anti-SLAPP Statute. ECF 61. As explained in the Withdrawal, defendants’ position is that D.C. has the most significant relationship with this lawsuit, followed by the substantive law of Washington, California, or Nevada. On May 28, 2015, Davis v. Cox, No. 90233-0, Opinion (PDF) (Wash. May 28, 2015) was issued, in which the Washington Supreme Court held that Washington’s anti-SLAPP statute is unconstitutional under state law.
June 3, 2015
Melendres. Arpaio and Sheridan file a “notice” in response to Moseley’s (Montgomery's) June 1 filing, stating as follows:
“Putative intervenor’s attorneys Klayman and Mosley neither represent Sheriff Arpaio and Chief Deputy Sheridan, nor speak for the interests of MCSO in this action or in any proceeding related to this action.
Sheriff Arpaio and Chief Deputy Sheridan reject the vitriol and inflammatory attacks set forth in the putative intervenor’s supplement. Sheriff Arpaio and Chief Deputy Sheridan respect the Court and believe such ad hominem attacks have no place in this litigation.”
Montgomery v. Risen. Montgomery files a Motion to Set Deposition of Defendant James Risen For Week Of June 8, 2015 and Request for Telephonic Conference with the Magistrate Judge at Earliest Practicable date And Time Prior to Week of June 8, 2015. ECF 65. This Motion is promptly stricken for violating the discovery procedures ordered in the case. ECF 66.
June 4, 2015
Montgomery v. Risen. Montgomery files an Opposition to Defendants’ Motion to Stay Discovery Pending Resolution of their Motions to Dismiss. ECF 68. Additionally, Montgomery files a Notice of Hearing by Attorney - Discovery Hearing set for 6/5/2015 05:30 PM. ECF 69. The court thereafter issues order setting hearing. ECF 71.
June 5, 2015
Montgomery v. Risen. Magistrate Judge Goodman presides over the discovery hearing. ECF 72 (Minute Entry); ECF 78 (Transcript).
June 8, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues a Post Discovery Hearing Order admonishing the parties:
"In the future, the parties are advised that such disputes should actually be at an impasse before being brought before the Court. Furthermore, the Court’s Discovery Calendar is not intended to be for the micromanaging of parties’ scheduling issues, as simple disputes over the setting of exact dates for depositions are best dealt with through reasonable dialogue among the counsel for the litigants."
June 10, 2015
Montgomery v. Risen. Defendants file their Reply in Support of Motion to Stay Discovery Pending Resolution of Their Motions to Dismiss. ECF 76.
June 11, 2015
Montgomery v. Risen. Defendants file their Reply in Support of Motions to Dismiss for Lack of Jurisdiction and Failure to State a Claim and in Support of Motion to Change Venue. ECF 77.
June 12, 2015
Melendres. Plaintiffs file their Response in Opposition to the Arpaio/Sheridan Motion to Recuse. ECF 1150 (Response with Exhibits). Plaintiffs also file, under seal, documents in support of their Response. See ECF 1151 (Notice of Lodging Under Seal certain documents referenced in Wang Declaration, contained in Exhibits to 1150); ECF 1152 (PDF) (Motion to file documents under seal); ECF 1153 (SEALED LODGED Proposed Sealed Declaration of Cecillia Wang in Support of Plaintiffs' Opposition to Motion for Recusal or Disqualification of the Court).]
On July 10, 2015, Judge Snow will deny the motion to file under seal and will order that the full Wang Declaration, with exhibits, be published on the docket.
June 22, 2015
Larry Klayman sends a "Demand to Immediately Withdraw As Counsel And to Mitigate Defamation of Dennis Montgomery" to various ACLU/ACLU Foundation-affiliated individuals. See Montgomery v. ACLU, ECF 5 at 67-74. In this letter, Klayman asserts (among other things) that Montgomery consulted with certain individuals at “the ACLU” in 2013 and 2014, and disclosed documents to such individuals. He then accuses various individuals of defaming Montgomery (among other accusations). Id.
Melendres. Arpaio and Sheridan file their Reply in support of their Motion for Recusal. ECF 1158.
June 24, 2015
Melendres. Jonathan Moseley files a “REPLY/Supplement” to his Motion for Reconsideration. ECF 1160.
June 25, 2015
Cecillia Wang responds to the June 22 Klayman/Montgomery "demand" as follows:
"I am in receipt of your letter of June 22, 2015 and am responding on behalf of the American Civil Liberties Union Foundation and the ACLU Foundation of Arizona. We disagree with the factual and legal claims in your letter and see no reason to take any further action."
See Montgomery v. ACLU, ECF 5 at 76.
June 30, 2015
Montgomery v. ACLU. Montgomery files suit against the American Civil Liberties Union Foundation (“ACLU”), Cecillia Wang, Daniel Pochoda, and a few others in the Federal District Court for the Southern District of Florida. See Montgomery v. ACLU ECF 1 (Complaint); ECF 5 ("corrected" Complaint).
Montgomery v. Risen. Defendants file a Notice of Hearing by Attorney - Discovery Hearing set for 7/10/2015 03:30 PM, to address a dispute as whether a proposed protective order should be entered. ECF 79 (PDF).
Thereafter, the Court issues an order stating (in part):
“This is an atypical discovery hearing concerning protective orders similar to the proposed one which Defendants attached to their notice. Usually, the parties stipulate to the entry of a protective order concerning confidentiality of information and documents obtained in discovery. In some instances, the parties agree in general on the concept of a protective order but might disagreee as to one or two (of many) provisions. But this dispute appears to be one where some parties (i.e., the Defendants) want a protective order but the other side (i.e., the Plaintiff) does not. This is unusual, and it may well be the first time in five years that the Undersigned has been confronted with this scenario (assuming that Plaintiff opposes any type of protective order).
Given the nature of the underlying lawsuit and the media status of the Defendants, the Court would like to review memoranda of law before the hearing. Therefore, Plaintiff and Defendants shall each (by July 8, 2015) file a memorandum of law, not to exceed five double-spaced pages (excluding signature block and certificate of service), on the relevant legal issues underlying each side's position. The Undersigned will not consider any case law or other authority not mentioned in the pre-hearing memoranda.”
ECF 80 (Docket Entry).
July 8, 2015
Melendres. Moseley files a “Fourth” “Supplement to his Motion for Reconsideration on Order on Motion to Intervene and Motion to Disqualify Judge Snow. ECF 1161.
Montgomery v. Risen. The parties file their Memoranda of Law in response to Magistrate Judge Goodmans’ June 30 Order. See ECF 83 (Montgomery Memorandum); ECF 84 (Defendants’ Memorandum).
July 9, 2015
Montgomery v. Risen. The parties file a joint Motion for Leave to Appear Telephonically at the July 10 hearing. ECF 85.
Magistrate Judge Goodman grants that order, “reluctantly, because of the Court's experience with other telephone hearings in this case. The attorneys participating by phone shall remember to make sure not to interrupt anyone before speaking and to pause for a second or two before speaking, in order to make sure that his or her comments are not interrupting the current speaker. If the telephone hearing turns out to be one filled with interruptions, then the Undersigned will not permit any further telephone hearings in this case absent compelling circumstances bordering on a genuine emergency. Counsel's status as an out-of-town attorney or as someone currently on travel will not be deemed to be compelling.” ECF 86.
July 10, 2015
Montgomery v. Risen. Montgomery files a “Supplement” to his July 8 Memorandum filed per the Court’s June 30 Order. ECF 87. Magistrate Judge Goodman presides over the scheduled hearing on the issue of whether to enter a protective order. ECF 88 (Minute Entry); ECF tbd (Transcript).
July 10, 2015 Order to Publish Seattle Operation Documents
Seattle Operation | Melendres. Judge Snow issues an order denying Plaintiff’s Motion to Seal Document, which was filed June 12, in support of their opposition to the Arpaio/Sheridan motion to recuse and orders that the declaration be filed on the docket as a public record. See ECF 1165 (order denying motion); ECF 1166 (declaration, with exhibits, filed on docket).
The released documents reveal multiple communications between Mike Zullo, Brian Mackiewicz, Larry Klayman, Dennis Montgomery and others between 2013 and 2015. And reveal the Arpaio and Sheridan's acknowledgements that the Seattle Operation information was "junk" as ... accurate.
Revelations include (but are not limited to) the following:
- So-called “timelines” and charts were created which – as Judge Snow (and the Plaintiffs, and Stephen Lemons of Phoenix New Times) said – indicate that individual(s) working with or for the MCSO were attempting to construct an alleged conspiracy involving Judge Snow and the DOJ (among many others). See Timeline - December 2013 - January 2014 (and beyond).
- On June 29, 2014, Dennis Montgomery complained that he was getting inconsistent instruction: “"... On one hand Anglin tells not to produce information on Judge SNOW. Then I am attacked for not producing information on Judge SNOW. Too many mixed signals from Anglin. ..."
Montgomery also asserted that "Anglin told by me that Sheridan didn’t want to go in front of Judge Snow and be accused of retaliating against the judge." And that "ANGLIN told me stop work on the BC [birth certificate] day one, He told me never to trust Mike Zullo. I was told directly by Anglin not to pass information on to Mike Zullo. I was not allowed to discuss with Mike zullo what I am being told to do or not to do."
Montgomery also shared his belief that Anglin is the person who leaked details of the investigation to the Phoenix New Times.
- On Nov. 3, 2014, Brian Mackiewicz, in an email reply to Montgomery, stated that:
“We [Mike, I, and the MCSO] have given you approximately120,000 dollars plus in exchange for information. We brought you before the Arizona State Attorney General, we found you two different Attorneys, and we opened the door to a Federal Judge to give you as much protection as possible.”
“Mike and I went to the Administration several times and asked for extensions to continue this investigation because we believed your "STORY" and the information you provided.”
That same day, Klayman responded to Mackiewicz by stating “I don't appreciate your games...there would be no judge if not for me. I suggest you do not mess with [D.C. Federal District Court Judge] Lamberth. There is no reason to do so at this time and your games are just to squeeze Dennis through me. I don't appreciate being played.”
- On Nov. 7, 2014, Brian Mackiewicz, in an email reply to Montgomery (copying Klayman and Zullo), stated (among other things) that:
"Dennis Montgomery represented the hard drives contained classified and sensitive information that he obtained while working at either eTreppid, or Blixware on behalf of federal government as a CIA contractor.
When our experts examined the information contained on the drives, not only did the numerous drives NOT contain any classified or sensitive information, they were instead contained data dumps of you relevant computer information hours off video feeds for Al Jazeera news feed.
After reviewing all the hard drives our experts concluded that Dennis Montgomery deliberately complied massive amounts of data on to these drives for the purpose of obfuscating the fact the data itself contained no evidence to support Dennis Montgomery's claims. There was no sensitive information contained on any of these 50 hard drives. In addition, our experts brought question in the validity concerning an number of emails Dennis Montgomery provided in the same hard drives."
Mackiewicz further stated:
"Dennis Montgomery is leaving us no other alternative but to take this investigation in a completely different course going forward. It is extremely discouraging to learn most if not all the representations made by Dennis Montgomery to investigators, the State of Arizona Attorney General, and a Federal Judge have been less then truthful.
- On April 9, 2015, Mike Zullo, emailed Montgomery (copying Klayman and Mackiewicz), demanding that he provide information. (Note: We believe the information he was seeking in this and later emails related to his Cold Case Posse birth certificate investigation, though he also notes “additionally” that Montgomery has failed to meet his obligations to the MCSO.) Zullo stated (among other things) as follows:
That Montgomery was “in fact contractually obligated and paid a total of 15K weeks ago just prior to vacating the residence as you formally agreed." … "On my end of this you were compensated $10,000 from a charitable organization for a service and software that I have yet to receive in any worthwhile or usable configuration." ... "Additionally, the agreement between you and the Sheriff’s Office to forgo official notification to our contact in DC is now very long in the tooth and unproductive for us, as you have again failed to deliver anything as agreed.
Zullo reminded Montgomery that, when the MCSO experts examined the information [Montgmery] provided, they “discovered there was absolutely nothing of value on them. To be clear there was nothing of a classified nature contained on any of them and as matter of fact there was evidence of fabrication on numinous levels. …”
Zullo further asserted: “With your pending litigation in FL. You are aware that both Brian and I had met with the defendant that last time we were in DC. He has our business cards. It will only be a matter of time before we are contacted by his attorney. Also in light of your most recent attempt to offer testimony as a WB and the fact that we have a videotaped Free Talk agreement you made with the AZAG and you have breached that agreements as well, this is not something I am prepared to allow to move forward without the proper notifications made on our end under these agonizing circumstances."
Zullo summed up the situation as follows: “Sixteen long months of ZERO s and just empty promises and lip service. Enough… "
- On April 20, 2015, Zullo again demanded “date set for the completion of the work Dennis Montgomery has been promising for over 16 months. In so doing, he stated (among other things):
"Mr. Montgomery’s behavior and lack of performance flies in the face of his numerous promises pledging to complete the work.. This is especially concerning given the face that Mr. Montgomery needs validation like a drowning man needs oxygen. His behavior simply erodes whatever thread of credibility he may have left. In fact as of this date, our experience dealing with Mr. Montgomery mirrors what has been written about him.. It is apparent to us that this is just a game of running the clock in the hope Montgomery can position himself as a “Whistle Blower” with some jurisdiction and with your help get out from under his obligation to the us. In our opinion Montgomery does not qualify under Federal Whistle Blower protections. A risky game…."
July 10, 2015 Order Denying Motion for Reconsideration on Moseley's PHV Admittance
Melendres. Judge Snow also issues an order denying Moseley’s Motion for Reconsideration of his prior order denying Moseley’s Motion for Admission to Practice Pro Hac Vice. Melendres, ECF 1167.
In this order, Judge Snow held that that Montgomery’s interests are adverse to Arpaio/MCSO’s interest (id. at 3), noting among other things that ‘Sheriff Arpaio has objected on the record to the positions taken by Mr. Moseley in one of his supplemental pleadings for admission pro hac vice” (id.at 4).
Judge Snow also found that “there is evidence that Mr. Moseley’s representation of Mr. Montgomery would stand in the way of the orderly administration of justice” (id. at 4), providing a laundry list of Moseley’s in this case alone that "demonstrates a substantial likelihood that his conduct would hinder the efficacious administration of justice if he were to be admitted" (id. at 4-5).
Zullo's July 10 appearance on Gallups' Freedom Friday
Cold Case Posse | Seattle Operation. Mike Zullo appears on Carl Gallup’s Freedom Friday Show (before the orders referenced below were issued) to discuss the status of the Arpaio-Zullo Cold Case Posse birther investigation. See Birther Report, "Sheriff Arpaio's Obama Investigator Talks Official Criminal Investigation," YouTube, July 10, 2015. See also Carl Gallups’ Freedom Friday, 7-10, Segment 1; Segment 2; Segment 3; Segment 4, 1330WEBY, July 10, 2015.
Among other things, Zullo and Gallups discussed the matters outlined below (unofficial layperson's transcript). The "three legal hurdles" that Zullo referenced in his interview with WND:
[~8:17] ZULLO: Yeah, let me address that, I actually do want to address that. I won’t go into specifics of the hurdles themselves. . . . What I need people to understand is that . . . this last hurdle is something that came up as this was unfolding and, folks you have to understand, this involves not only me or the Sheriff – it involves other people, other legal entanglements that have to be worked out, and it’s gonna also involve and basically rest on the cooperation and protection of other people, and I’m not talking just physically, I’m talking also about legally; it involves attorneys – it’s one of those things that every nut and bolt has to be tightened down, because if one thing isn’t torqued correctly, the whole thing falls apart.
[~9:20] And going back when I first aired . . . that we had something, we found something, I thought that was gonna happen in a matter of weeks. As a matter of fact, everybody around us did. These legal problems started to surface that we did not anticipate. And that’s pretty much where we are. So when I made the statement in the news article that it may never see the light of day, let me clarify for you: That information may never see the light of day; that doesn’t mean I don’t have an idea of what it is; that doesn’t mean I will take it to the grave. Just because it doesn’t see the light of day from my perspective, just means I couldn’t bring it into this legal setting. And, ya know, people are gonna have to understand, I can’t divulge what we’re working on, where we’re at but, for it to have these kind of impediments, it’s not something to be taken. . . .
[~28:44] ZULLO: Yeah, and the context is and my thought process when I’m asked anything regarding this, I am thinking of the investigatory sense, the legal sense, what we would be able to release, what we couldn’t release. And in that genre, if we don’t have what we need to be able to do that – like I will not go before the public and release something that I think or I believe – it’s only what I can prove. At that point in time, it would never see the light of day. Now. That doesn’t mean I won’t discuss later on perhaps what it was – or give people a good idea of what happened without disclosing what it is. I mean it’s a very touchy subject. …
How Dennis Montgomery fits into the “universe-shattering information”:
[14:44] ZULLO: Well, Carl, you know, there are legal proceedings going on where Mr. Montgomery is being affected by, so I can’t comment on anything regarding Mr. Montgomery, but I can tell you that Mr. Montgomery has brought a broad base of information.*
*Note: Contrast this statement from Zullo with his Apr. 9, 2015 email to Klayman and Montgomery where he described Mr. Montgomery’s contribution as “Sixteen long months of ZERO s and just empty promises and lip service.” Melendres, ECF 1166 at 24.
How much [Seattle Operation] information Zullo provided to Gallup:
[17:54] ZULLO: Well Carl, it wasn’t so much when it kinda took a different little turn – it started to happen when it started to – and I’m just gonna leave it at this, as getting darker. At that point, and again, you’ll know this and some of your listeners that were former investigators are gonna know this: there’s things that you don’t discuss with people. Not only for secrecy reasons, but reasons of conducting an investigation – but you don’t want to put someone else in a position of having any knowledge that they shouldn’t have. And that’s the reason. I mean, if you guys look at it, I’ve stayed off this radio for a very very long time. And people are pounding tables. And I get it, you know – pounding tables, wanting something done, did you turn your back on us.
[18:36] No, let me tell you something – that’s far from it. And I think if you’ve been following anything going on with the sheriff, you can see that my participation in other things are now involved. So it’s not purposeful in a sense to leave people in the dark because I’m choosing to. It’s what’s necessitated in going forward. It has to be done this way.
Whether Arpaio's and Sheridan's "saying that Montgomery’s – that the Montgomery information was quote-junk, diminishes his value to the investigation:
[21:46] ZULLO: I can’t ... I cannot get into that’s related to that litigation. However, the only thing I do want you to understand is, a lot of times in law enforcement circles, information that may n..– that we may not have been able to corroborate is often referred to as junk information. That doesn’t mean what you folks think it means. And . . . and there wasn’t really ample time for the Sheriff and the Chief Deputy to come up to speed with what was progressing on this front. They were caught – you know, for all intents and purposes, Sheriff Arpaio was caught cold. . . . So I can’t really . . . discuss much more on that.
How Larry Klayman got involved in the investigation:
[25:34] ZULLO: Larry Klayman is the founder of Freedom Watch. A very talented attorney. I can’t go into particulars in how he got involved, but I would like to say one thing: I’ve come to know Larry now over three years. And one thing I can tell you about Larry Klayman: Larry Klayman is a patriot. You know, some people bleed patriotism. Larry Klayman bleeds patriotism. He loves his country. And he goes and he takes a lotta hits for trying to do the things that are right. . . . It’s gonna be a fascinating story when it finally does come out how he became involved.
How Montgomery became involved in the investigation:
[31:31] ZULLO: I cannot, I cannot answer that question. . . . That’s a set-up question, I gotta tell you Carl. . . . I think I know the reporter that just put that question over to you. ...
How the birther debunker's "Xerox Evidence"* was the impetus leading Zullo to the "universe shattering information" (i.e, to Montgomery):
[33:28] GALLUPS (reading listener’s question): Mike, you said before that the so-called Xerox evidence is of no concern, yet it’s still out there, unchallenged and even a lot of your supporters have said it seems to refute a lot of your evidence. Is the Xerox evidence the reason you seem to have abandoned much of the original investigation? I know you’ve done a lot of testing in this area – why not release the evidence and just refute it?
[33:48] ZULLO: Well first off, the Xerox machine was the very piece of information that tipped me off that there’s another way to go here. . . . I mean, Carl, if those punker-chimps wanna keep pumping the Xerox machine, have at it, because it’s irrelevant as far as I’m concerned. . . .
[34:06] GALLUPS: Right, and I remember Mike, and I’m just gonna say this then I’m gonna let you go on because they wanna hear from you and not me, but I remember when all of that came up, and, and, and (laughing), I’m not at liberty to go down that whole rabbit trail, but I can remember you saying, “oh my gosh, another whole door has just opened here. And they didn’t even realize what they did. . . .
(See here for a more complete unofficial layperson's transcript.)
July 13, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues a Protective Order Concerning Confidential Information. ECF 89 (PDF).
July 14, 2015
Melendres. Arpaio and Sheridan file a Motion to Stay in Melendres, seeking a stay in the proceedings. Defendants notify the court that they will file a Petition for Writ of Mandamus in the 9th Circuit, challenging Judge Snow's July 10, 2015 Order denying their motion to recuse by July 24th, and request a stay in proceedings until that petition is resolved. ECF 1171, ECF 1172.
Also today, Jonathan Moseley files a "Notice of Appeal" asserting that he is appealing
(a) Judge Snow's denial of his motion for reconsideration of Pro Hac Vice Admission (ECF 1167);
(b) Judge Snow's order denying Arpaio and Sheridan's Motion to Recuse (ECF 1164); and
(c) Judge Snow's order denying* striking the Motion to Intervene and Order on Motion to Disqualify Judge that he filed on behalf of Montgomery (ECF 1093).
*Note: While Moseley asserts he is appealing an order denying Montgomery's motion to intervene and to disqualify judge, the fact is that the motions were stricken from the docket - because they were filed by Moseley who was not admitted to practice law in the Federal District of Arizona.
July 20, 2015
Seattle Operation | Melendres. Judge Snow holds a status conference, in which he (among other things), (a) grants the DOL’s request to review the Montgomery/Seattle Operation documents (see Melendres July 20 Transcript, ECF 1186, at 51); and(b) orders parties to file, by July 29, 2015, responses to Larry Klayman's Motion for Admission Pro Hac Vice."
ECF 1179 (Text Only Entry). See also Stephen Lemons, “Snow Allows DOJ To Review Montgomery Docs, Denies Stay Request, Sets Dates For Further Contempt Hearings,” Phoenix New Times, July 21, 2015; and Will Stone, “Judge: Contempt Of Court Hearings Against Arpaio To Resume In September,” KJZZ, July 21, 2015; Megan Cassidy, “Arpaio's contempt hearings to resume in September,” Arizona Republic, July 21, 2015; Associated Press, "Judge sets date to resume Sheriff Joe Arpaio's contempt-of-court hearings,"AP/KTAR News, July 21, 2015.
Klayman's Motion for Admission Pro Hac Vice-- Judge Snow expresses his concerns as follows:
[THE COURT]: I have a couple of concerns. I have the concern that you have the same conflicts that Mr. Moseley was subject to as it pertains to your client, Mr. Montgomery, and the testimony that we've already received from your client, Sheriff Arpaio, and Chief Deputy Sheridan that I had outlined in denying his admission pro hac vice. It seems to me like you're subject to those same objections.
It also seems to me, and I don't want to be precipitous on this, but some of the documents that have since been disclosed raise at least the possibility that you yourself might be a witness in this action, and so I'm a little concerned to grant your admission pro hac vice without at least allowing the other parties to be heard on it.
To the extent that you want to speak on behalf of Mr. Montgomery, I will briefly allow you to do so as long as you keep within the confines of ethics and propriety.
Transcript, ECF 1186 at 47. Judge Snow defers ruling on the motion pending full briefing on the matter. Id. at 47-48, 51-53.
DOJ review of the Seattle Operation/Montgomery documents* -- Klayman argues (and the Court responds) as follows:
MR. KLAYMAN: That's fine, Your Honor, but we do request that before that's heard, and if Your Honor should grant it -- and I would like an opportunity to reply to that; we just simply submitted the application pro hac vice -- that you not release documents until such time as you make a ruling on that, because Mr. Montgomery would like to renew his motion to intervene to protect what he claims are his property interests in those documents.
THE COURT: Well, the only testimony that we have in this action is that those are documents that he -- I don't know how to -- I don't want to use words other than Chief Deputy Sheridan used, but those are documents that he took from the CIA that the CIA was harvesting from American citizens.
It [50] doesn't sound to me like he has any property interest in such documents.
To the extent that he does have such property interests, and to the extent that -- because there may be other documents in there that are -- and, in fact, there may be no documents taken from the CIA; that possibility has been raised by the evidence. If that is so, how is he damaged by allowing the United States of America to review and confirm that they have no property interest in those documents? What property interest does Mr. Montgomery have in such documents that would in any way be infringed by allowing the United States to review those documents under seal to make sure that they have no security interest in them?
MR. KLAYMAN: We did submit with the motion to intervene, as part of the various pleadings, a court -- and we've cited it -- a court ruling in Nevada where the Department of Justice was ordered to give documents back to Mr. Montgomery.
THE COURT: And that was a 2006 ruling.
MR. KLAYMAN: That's correct.
THE COURT: Well, this case supposedly reconstructed material from a database that pertained to alleged telephone calls and e-mails that occurred in 2009 and 2010.
How does that Nevada 2006 ruling relate to any database that alleges to have 2009-2010 documents in it?
[51] MR. KLAYMAN: That's something that Mr. Montgomery would like the opportunity to argue in front of this Court.
THE COURT: Well, I'm giving you the opportunity right now.
MR. KLAYMAN: I don't have that information, Your Honor. I don't have it. But we want an opportunity to, in a systematic way, put forward a brief to this Court on that issue.
THE COURT: And I think that you can have that opportunity, but you need to explain to me now why any interest that Mr. Montgomery might have in such materials is in any way infringed by allowing the United States to review them under seal to make sure that there are no secured documents that belong to the CIA in those materials.
MR. KLAYMAN: Your Honor, I'm not taking a position on that; I'm simply wanting an opportunity to brief it in the ordinary course. And we came before this Court, and I don't have any conflict with Sheriff Arpaio. We --
THE COURT: Well --
MR. KLAYMAN: -- we stated that we're not --
THE COURT: -- you may take your seat.
MR. KLAYMAN: -- taking any adverse position.
THE COURT: You may take your seat, because I've already ruled on that. I'm going to allow the other parties to address your renewed motion to intervene. ...
* * *
THE COURT: In the meantime, I am going to grant the United States' motion to review the documents that have been provided. I am ordering the United States that while they have the authorization to have government employees and agents review the material, the material will be disseminated to no third party under any condition without the prior approval of this Court.
* * *
Id. at 49-51.
*Note. See Notes at May 11 for information calling into question Klayman's claims re: Montgomery's ownership of the "intellectual property" subject to the cited Nevada decisions.
Montgomery v. Risen. Defendants file a Notice of Hearing by Attorney: Discovery Hearing set for 8/7/2015 03:30 PM, attaching their discovery requests and Montgomery’s written responses. ECF 90. Magistrate Judge Goodman promptly issues an order regarding that hearing as follows:
In their notice of hearing, Defendants suggest that the Court would benefit from reviewing pre-hearing memoranda not to exceed five pages on the "principal points of contention and uncommon legal issues." Although the Undersigned will grant this request and require pre-hearing memoranda, the Defendants' request does not sufficiently pinpoint the legal issues, especially the generic "uncommon legal issues" which they anticipate will be discussed in the memoranda.
Therefore, Defendants shall by July 22, 2014, file a notice specifically listing the precise legal issues which they believe should be addressed in the memoranda. If Plaintiff has any additional issues which he believes would be helpful to the Court at the August 7, 2015 discovery hearing, then he may file his own list of supplemental issues by July 24, 2014. The parties shall file their respective memoranda on the listed issues by August 4, 2015.
A final point:
Obviously, a five-page memorandum will not be sufficient to adequately address more than a few specifically designated issues. Because the Undersigned is not sufficiently familiar with the nuances of the present discovery dispute, I am reluctant to provide a cap on the number of issues. However, the Undersigned expects the parties to be reasonable and responsible and not list too many issues for a 5-page memorandum. If the list (or lists, assuming that Plaintiff also files one) contains too many issues, then the Court will not review either memo.”
ECF 91.
July 22, 2015
Montgomery v. Risen. Defendants file their Notice of Legal Issues to Address in Their Prehearing Memorandum per the Court’s July 20 order. ECF 92.
Montgomery v. ACLU. Defendants file a Motion for Extension of Time to File Response /Reply/ Answer. ECF 9.
Montgomery files an Opposition to Defendants' Motion for Extension, asserting that a 10-day extension is ok, but a 21-day extension is not ok. ECF 10.
July 23, 2015
Montgomery v. ACLU. Judge Moore grants Defendants' July 22 Motion for Extension of Time. ECF 11 (paperless order).
July 24, 2015
Seattle Operation | Melendres. Judge Snow calls an emergency hearing at the court monitor's request, regarding the Monitor's request for access to "certain documents and tangible things on an immediate basis from Defendants, which Defendants have declined." ECF 1190.
CHIEF WARSHAW: ...
This morning I noted an e-mail from Ms. Iafrate. I did call her at approximately 7:45 this morning. She inquired with more specificity as to what it is that we wanted. I advised her that we were looking to gain access to 1500 IDs that had been brought to our attention as well as 50 hard drives that we believed to be in the Property Unit and were associated with the Dennis Montgomery matter.
I would note that back on April 27th, when we received the single hard drive that we did get at that time, we were told by Chief Knight that that material was the only material in the possession of the agency relevant to the Montgomery matter. I gave Ms. Iafrate the DR number, the department report number that was associated with the 50 hard drives.
***
THE COURT: When you talk about the 50 hard drives related to the Montgomery investigation, where did you find out about those?
CHIEF WARSHAW: As a result of document requests that were made of the MCSO, after the initial release of the single hard drive we got on April 27th, it became apparent, in looking at various e-mail streams, that there were references to hard drives that were reposited in the Property Unit.
THE COURT: Did anybody look -- did you request the hard drives in the Property Unit?
CHIEF WARSHAW: We request -- I'm sorry, Judge.
THE COURT: I think -- did you request that the hard drives be turned over that were in the Property Unit?
CHIEF WARSHAW: We request any and all. Yes, we certainly today requested that today, yes, sir.
THE COURT: And you talked about a specific DR number.
Is that a locker? What is that?
CHIEF WARSHAW: The DR number would be -- a DR number is the department report number, so it would be a filing mechanism in which they could find the items in the particular bin based upon what the DR number is.
[15] THE COURT: Did you request what the contents of that particular DR unit was? Did you ask anybody to verify the contents of that unit?
CHIEF WARSHAW: Yes.
THE COURT: And what were you told?
CHIEF WARSHAW: We were told that the number that we gave did in fact correspond to 50 hard drives.
THE COURT: Was there anything else in the unit?
CHIEF WARSHAW: I do not believe. I don't believe.
THE COURT: Okay. And so you haven't had any response in --
CHIEF WARSHAW: We've had no response.
THE COURT: -- in terms of your request to have those 50 hard drives.
CHIEF WARSHAW: That is correct. And we made that very clear to Lieutenant Kratzer, that that was also part of our mission this morning.
Melendres July 24, 2015 Hearing Transcript, ECF 1194, at 7-15. See also Megan Cassidy, "Judge sends marshals to seize evidence from Sheriff Joe Arpaio," Arizona Republic/AZ Central, July 24, 2015; Jude Joffe-Block, “Judge Orders US Marshals To Seize MCSO Records,” KJZZ, July 24, 2015; and Stephen Lemons, “Arpaio's Lead Investigator For The Seattle Probe Has Choice Words For Judge Snow,” Phoenix New Times, Aug. 5, 2015 for additional reporting on the hearing.
Seattle Operation | Melendres. Following the hearing, Judge Snow issues the following order:
The Court held a hearing with the parties on July 24, 2015. Defendants are hereby ordered to turn over all items of evidence associated with DR-14-007250, including hard drives, documents, and/or any other and materials, to the custody of the United States Marshals Service by the end of the day today, July 24, 2015. The Marshals shall store this evidence in a secure location and make it available, upon request and under secure conditions, to the parties and to the United States Government for copying pursuant to the Court’s previous orders. Defendants are further ordered to produce to the Marshals the 1,459 identifications that lack an associated DR number.
Melendres, ECF 1192. According to Phoenix New Times' Stephen Lemons, when he requested, back in May 2015, documents relating to "DR 14-007250" from the MCSO, he received the following response:
"In researching this request, it has been determined that there is an ongoing investigation and all records related to Incident Report 14-007250 authored by [Detective] Brian Mackiewicz ref: Seattle Washington, or any related investigations are under protective order by the court and shall not be disclosed until authorized and ordered by the court."
Stephen Lemons, Snow Orders Arpaio To Cough Up New Montgomery Files And 1,500 Seized IDs To The U.S. Marshal, Phoenix New Times, July 24, 2015 (emphasis added). Lemons also reported that "Interestingly, I had been told two months back by sources that "DR 14-007250" is a "found property report," and that it was being used to mask the true nature of material related to the Montgomery investigation." Id.
Montgomery v. Risen. Defendants file a Notice of Supplemental Authority re their Motion to Stay Discovery Pending Resolution of Their Motions to Dismiss, attaching a July 23 order issued in Klayman v. Clinton, No. 15-cv-80388-DMM (S.D. Fla), which granted a motion to stay discovery pending resolution of motions to dismiss. ECF 93 (PDF).
July 28, 2015
Melendres. The Melendres Plaintiffs file an Opposition to Motion for Admission Pro Hac Vice of Larry Klayman. That motion reads, in part, as follows:
At the July 20, 2015 status conference, Mr. Klayman asserted that he did not have a conflict with Sheriff Arpaio. But this is contradicted by a letter that Sheriff Arpaio wrote to Mr. Klayman, which has been produced by Sheriff Arpaio’s attorneys, in which Sheriff Arpaio expressly told Mr. Klayman that Mr. Klayman’s representation of Mr. Montgomery (and Mr. Zullo) “would, and does, create a conflict here in Arizona.” See Exhibit 2. Mr. Klayman’s failure to disclose to the Court the existence of the Sheriff’s letter, and his affirmative representation to this Court notwithstanding the Sheriff’s letter that there is no conflict, are further grounds for denial of his application.
Mr. Klayman’s behavior when admitted pro hac vice in other courts also indicates that his admission in this case would impede the orderly administration of justice. Mr. Klayman’s application mentions two currently pending disciplinary proceedings against him, in the bars of the District of Columbia and Pennsylvania.
The application also mentions two District Court judges, in California and New York, who separately prohibited him from practicing before them again. However, Mr. Klayman’s application fails to mention the fact that two federal Courts of Appeals unanimously affirmed the orders of those District Court judges, in published decisions that explain in some detail how Mr. Klayman abused his pro hac vice admissions in those cases. Baldwin Hardware Corporation v. Franksu Enterprise Corporation, 78 F.3d 550 (Fed. Cir. 1996); MacDraw, Inc. v. CIT Group Equipment Financing, Inc., 138 F.3d 33 (2d Cir. 1998). The Second Circuit expressly found that Mr. Klayman’s challenge to a judge’s impartiality based on the judge’s ethnicity and the identity of the administration that appointed him was “insulting and smacked of intimidation.” MacDraw, 138 F.3d at 38. The Federal Circuit affirmed a sanction against Mr. Klayman’s firm for “unreasonably and vexatiously multiplying the proceedings.” Baldwin Hardware, 78 F.3d at 554.
See Melendres, ECF 1198 at 3-4 (hyperlinks to cases added).
July 31, 2015
Melendres. Judge Snow holds a status conference during which he addresses the events leading up to last Friday's hearing (as well as Sheridan's inaccurate statements to the media following last Friday's hearing), as well as several other matters, including, but not limited to the following:
- Klayman's motion for PHV admittance. Klayman did not appear at the hearing. Judge Snow reportedly did not rule on Klayman's motion because he (Klayman) still had time to file a reply (presumably, in response to the oppositions filed by Plaintiffs and Maricopa County).
A full transcript is not yet publicly available.* For more details on what transpired at the hearing, see Stephen Lemons, "Arpaio's Chief Deputy Shellacked (Again), Judge Decries "Direct Violations" Of Court Orders," Phoenix New Times, Aug. 31, 2015; and Megan Cassidy, "Roundup of Friday's Arpaio hearing," AZ Central/Arizona Republic, Aug. 31, 2015.
*Note: See Melendres, ECF 1246 for a transcript of the previously sealed portion of this hearing, during which a criminal investigation, apparently involving Brian Mackiewicz, was discussed.
Seattle Operation | Melendres. Judge Snow issues an order regarding matters discussed at the status conference. Melendres, ECF 1208. Among other things, Judge Snow orders the MCSO to turn over an original hard drive (given to MCSO Deputy Chief Bill Knight in April) to the U.S. Marshals on Monday, August 3.
Aug. 2, 2015
Cold Case Posse. Rick Wells, who has frequently published Arpaio-Zullo birther investigation information, publishes an article indicating that Arpaio has "safely tucked away" the birther investigation evidence:
Judge Snow’s long-running feud with Arpaio has included assertions by the Judge that Arpaio has conducted an investigation of Snow, suspecting collusion between him and federal authorities involved in a separate federal lawsuit against Sheriff Arpaio. Sheriff Arpaio wasn’t born yesterday; he knows what’s going on but proving it might be tough.
* * *
The actions by this judge are suspiciously like what one would expect to see from someone attempting to uncover the documentation related to that case, discover what information and documents are known and to eliminate as much evidence as possible.
It’s too bad for those obstructing the truth about Obama’s document fraud that Sheriff Arpaio already had the evidence safely tucked away. Maybe he already came up with the mini-storage idea on his own. Maybe he too has friends in high places.
See Rick Wells, "Federal Harassment Of Sheriff Arpaio Continues – Office Raided Again, Threatened With Criminal Contempt," Universal Free Press, Aug. 2, 2015.
Aug. 4, 2015
Montgomery v. Risen. Defendants file their Memorandum of Law in response the Court’s July 20 order. ECF 94. Montgomery files his Memorandum as well. ECF 96.
Aug. 5, 2015
Seattle Operation. Stephen Lemons publishes an article about Brian Mackiewicz. See Stephen Lemons, "Arpaio's Lead Investigator for the Seattle Probe Has Choice Words for Judge Snow," Phoenix New Times, Aug. 5, 2015. Per Lemons, Mackiewicz, -- in asserting his belief that the MCSO and DOJ were working out issues before the July 24 Emergency Hearing -- said,
""Then, all of a sudden, Judge Snow pulls, 'My dick is bigger than Joe Arpaio's dick, and this is what I'm going to do because I'm a federal judge,'" Mackiewicz cracked. "And he goes ahead and makes this order to seize the drives.""
Id. Mackiewicz also said "Judge Snow is the most biased, unprofessional, unfair person on the face of the Earth[.] ... And that's just my own personal opinion." However, Lemons reports that:
"Mackiewicz says he'll go ahead and "jump through all these hoops" for Judge Snow, "and all this other bullshit he wants me to do."
But that doesn't mean he'll like it.
"It's about time someone sticks up for their fucking selves," he said, "and tells this judge exactly where to go.""
Id. With respect to Court Monitor Warshaw, Lemons reports Mackiewicz's comments as follows:
"I'm getting killed by the fucking monitor right now," [Mackiewicz] said, adding that the monitor wanted to make him into the "evil bad guy" in all this.
"The monitor wants [to know] everything, including how many times I take a shit," he griped. "But they don't want to sit down and question me about what's going on."
And yet, [Mackiewicz] believes the monitor staff will interview him after they have interviewed everyone else involved in the Montgomery affair, which makes sense from "an investigative standpoint," he acknowledges."
Id. Mackiewicz also denied that the Seattle Operation had anything to do with Judge Snow, asserting that the operation was an investigation into alleged identity theft. When asked about the documents previously revealed -- i.e., timelines and charts naming Judge Snow, Mackiewicz asserted that "Dennis Montgomery did all that on his own." According to Mackiewicz, "[Montgomery] provided us with documentation that he thought would prove to us that Snow was up to no good." Stephen Lemons, "Arpaio's Lead Investigator for the Seattle Probe Has Choice Words for Judge Snow," Phoenix New Times, Aug. 5, 2015.
The Criminal Investigation re: Brian Mackiewicz
Lemons also reports that Lisa Allen (MCSO spokeperson) confirmed to him that Mackiewicz is currently subject to an ongoing criminal investigation (in addition to administrative internal investigations), though she refused to provide details. Per Lemons, his sources indicate that the investigation relates to allegations that Mackiewicz padded his overtime hours while in Seattle and that another possible matter involves allegations that Mackiewicz had Montgomery build him a computer. Id.
MCSO Attorney Iafrate said, during the previously sealed portion of the July 31 transcript, as follows:
"This is a unique situation where criminal prosecution is likely and the investigation is still in a phase where it could be compromised...."
See ECF 1246 at 77. Iafrate will say, during the August 7 hearing, as follows:
" ...I, too, read the newspaper article [i.e., Lemon's Phoenix New Times article referenced above] and was surprised at some of the things that were revealed in that newspaper article.
I do not think that the subject fully understands the extent of the investigation or, quite frankly, what the investigation is fully about, and I would ask the Court to keep these under seal because we do not want to compromise the criminal investigation that is continuing."
See ECF 1232 (Transcript of portion of Aug. 7 hearing) at 10. Iafrate also reveals that the AG is working with the MCSO on the investigation. Id. at 11. Iafrate also asserts that the criminal investigation is a "new" event:
"He was well aware of the administrative investigations for quite some time. This criminal investigation was a new event that he has not been told about."
Id. at 14.
Blixseth Proceedings. The Ninth Circuit issues an order sanctioning Timothy Blixseth and Michael Flynn for their behavior during a frivolous appeal of the district court’s denial of their motion to recuse – including their reliance on documents provided by Montgomery. See Blixseth v. Yellowstone Mountain Club, LLC, No. 12-35986, -- F.3d. --, Doc. 106 (9th Cir. Aug. 4, 2015); see also Blixseth v. Yellowstone Mountain Club, LLC, 742 F.3d 1215, Doc. 68 (9th Cir. 2014) (affirming lower court’s order denying motion to recuse).
In the August 5 Order, the Ninth Circuit holds that:
“Flynn’s conduct has been unprofessional throughout the proceedings. He proffered two emails allegedly obtained from Blixseth’s ex-wife’s account—unsurprisingly, documents outside the record—without even alluding to the fact that in another action, “[Blixseth’s ex-wife] and her counsel filed affidavits and supporting documents that conclusively demonstrate that the ‘evidence’ is forged.” This omission is an unreasonable and irresponsible breach of Flynn’s “duty of good faith and candor in dealing with the judiciary.” United States v. Associated Convalescent Enters., Inc., 766 F.2d 1342, 1346 (9th Cir. 1985). Such a breach supports sanctions under section 1927. See id. at 1346–47.” (Order at 5-6.)
The two documents at issue were produced by Dennis Montgomery. See, e.g., December 13, 2012 Declaration of Dennis L. Montgomery, as submitted in Blixseth v. YMC Appeal, Doc 52 at pp. 254-272, 293-95, 350-61 (attached to Blixseth’s Emergency Motion Per Circuit Rule 27.3 to Stay Proceedings); Doc 78 at pp. 30-31, 42-50 (Flynn’s Response to Order to Show Cause) (Mar. 18, 2014); and Doc 98 (Flynn's Reply to [Appellees] Response to Order to Show Cause) (May 1, 2014).
For the “affidavits and supporting documents that conclusively demonstrate that the ‘evidence’ is forged” (Order at 5-6), see, e.g., Blixseth v. YMC Appeal, Doc 55 at pp. 120-73 (attached to YCLT’s Opposition to Blixseth's Emergency Motion to Stay Proceedings); Doc 87 (pp. 2-10, 75-81, 85-122) (attached to YCLT’s Response to Order to Show Cause) (9th Cir. Apr. 17, 2014). See also Doc 88 (Reply of Appellees the Debtors, Yellowstone Mountain Club, LLC et al, CrossHarbor Capital Partners, LLC and CIP Sunrise Ridge Owner LLC to Michael J. Flynn’s Response to Order To Show Cause).
*Note: The Montgomery Declaration and attached documents of questionable validity have been submitted in a variety of state and federal court cases, from divorce proceedings to multiple bankruptcy proceedings. It appears however, that no court has ruled on the authenticity of the materials.
Montgomery v. Risen. Judge Goodman issues an order continuing the August 7 hearing due to medical matters. ECF 94. He will later reschedule the hearing for Aug. 27 (ECF 99), then again reschedule it, in response to a request from Defendants, for Aug. 21 (ECF 101).
Week of August 3-7
Brian Mackiewicz (MCSO) is placed on administrative leave. See Transcript of sealed portion of Aug. 7 hearing, Melendres ECF 1232 at 10, 12; see also Stephen Lemons, “Arpaio Pal Klayman Shot Down, DOJ Okayed, And More In Latest Sheriff Joe Contempt Hearing,” Phoenix New Times, Aug. 12, 2015 (“On Tuesday, Allen also confirmed to me that Mackiewicz has been on administrative leave for about a week now”).
Melendres. The MCSO submits the Mackiewicz criminal investigation file to the Melendres Court Monitor, "absent one interview that just occurred out of state." See ECF 1232 at 18.
Aug. 6, 2015
Melendres. Judge Snow issues an order scheduling a hearing for August 7. ECF 1216 at 1, 2.
Melendres - Arpaio Writ Petition. Arpaio and Sheridan file a Petition for Writ of Mandamus in the Ninth Circuit, seeking recusal of Judge Snow. See In re Arpaio and Sheridan, Doc. 1. In this petition, they argue (in part) that Judge Snow's questions to Arpaio and Sheridan about Montgomery's alleged involvement in investigating a bogus DOJ-Judge Snow conspiracy created a conflict requiring Judge Snow's recusal.
Aug. 7, 2015
Brian Mackiewicz is scheduled to be interviewed by the Melendres Court Monitors. See Melendres, ECF 1232 (Transcript of portion of Aug. 7 hearing) at 22 (noting that "there's a 1:30 interview scheduled for Detective Mackiewicz by the monitors"). According to a later report, Mackiewicz refuses to answer questions upon the advice of his attorney. See Stephen Lemons, “Arpaio Pal Klayman Shot Down, DOJ Okayed, And More In Latest Sheriff Joe Contempt Hearing,” Phoenix New Times, Aug. 12, 2015.
Aug. 10, 2015
Melendres. Larry Klayman files a Reply in support of his Motion for Admittance Pro Hac Vice. ECF 1223. This Reply fails to address key issues raised by Judge Snow at the July 20 hearing (as reported by Stephen Lemons) - namely the fact that Klayman may be a witness in the proceedings.
Additionally, while Klayman repeats (Reply at 3-4) his prior allegation that another court already held (in 2006) that similar property belonged to Montgomery, he fails to address in his Reply how the alleged "Montgomery property" at issue in this case relates to the "Montgomery property" at issue in the 2006 eTreppid case. See also Dec. 6, 2012 for links to documents indicating that Montgomery's then-existing intellectual property was part of his bankruptcy estate and was sold to Michael Flynn in early 2013.
*Note. See Notes at May 11 for information calling into question Klayman's claims re: Montgomery's ownership of the "intellectual property" subject to the cited Nevada decisions.
Melendres - Montgomery Appeal I. Montgomery (Klayman) files an “Emergency Motion for Stay on Appeal” in Montgomery’s (Moseley) appeal pending in the Ninth Circuit. See Montgomery Melendres Appeal I, Doc 5.
Melendres - Arpaio Writ Petition. Montgomery files a “Motion to Intervene” in the Arpaio-Sheridan Petition for Writ of Mandamus proceedings pending in the Ninth Circuit. See In re Arpaio and Sheridan, Doc 4.
Aug. 11, 2015
Judge Snow holds the previously-scheduled status conference. See August 11, 2015 Transcript of Proceedings (as filed in 9th Circuit). Multiple issues* were discussed including, but not limited to, the following:
Larry Klayman's Motion for Admission Pro Hac Vice
Melendres. Larry Klayman fails to attend the hearing. See Transcript at 11-15. Klayman's motion for PHV admission is denied. In denying Klayman's motion, Judge Snow indicates he believes
"believes Klayman has a conflict of interest because he represents Arpaio in a different lawsuit. Snow also said he believes Klayman may potentially be a witness in the case and that some documents suggest “Klayman may have been involved in efforts to convince the Maricopa County Sheriff’s Office that Montgomery was providing them with real stuff.” Snow said Montgomery is welcome to appear in court and represent himself or hire another attorney if he wishes to intervene."
See Jude Joffe Block, "Judge: DOJ May Join Racial Profiling Case Against Sheriff Arpaio," KJZZ, Aug. 11, 2015. Additionally, according to Stephen Lemons,
"Snow was troubled that Klayman had "attacked this court" and had made "unwarranted attacks against Ms. Iafrate."The judge also worried about Klayman's ability to "infuse invective into this lawsuit," and so denied Klayman's attempt to represent Montgomery in the case. Snow left the door open for Montgomery to be represented by other counsel."
See Stephen Lemons, “Arpaio Pal Klayman Shot Down, DOJ Okayed, And More In Latest Sheriff Joe Contempt Hearing,” Phoenix New Times, Aug. 12, 2015.
Government Review of the Montgomery/Seattle Operations Materials
Seattle Operation | Melendres. The United States provides an update on government review of Montgomery documents and materials for classified information. See Transcript at 28-42. Rapheal Gomez* reports on behalf of the United States that:
"[a] separate division of the DOJ is in the process of copying evidence turned over to the court to see if it contains classified information or documents taken from the CIA. ... [T]he DOJ’s Rafael Gomez told the court he has begun the process of copying two banker boxes and a hard drive Montgomery gave the MCSO. Gomez said he planned to review them for classified information and records belonging to the United States."
See Jude Joffe Block, "Judge: DOJ May Join Racial Profiling Case Against Sheriff Arpaio," KJZZ, Aug. 11, 2015. Stephen Lemons reported additional details:
"Gomez said that his "client entities" — presumably U.S. intelligence agencies such as the CIA — only wanted to review the one hard drive and two bankers boxes of material that had been made available to them previously; they then will decide what to do about the additional 50 hard drives.
Gomez said he could not reveal who these "client entities" are, as that information may be classified pending a review of the material. He said his clients were concerned that by opening the 50 hard drives they could compromise the metadata on the files. He could not say how long it would take for a decision to be reached."
See Stephen Lemons, "Arpaio Pal Klayman Shot Down, DOJ Okayed, And More In Latest Sheriff Joe Contempt Hearing," Phoenix New Times, Aug. 12, 2015.
Lemons also reported that Judge Snow "seemed annoyed" by Gomez's report and said that he would not be waiting for the government to decide what to do before granting parties permission to examine the 50 hard drives. Both Iafrate (Arpaio counsel) and Wang (Plaintiffs counsel) said they want access to the hard drives and Snow ordered them to consult with the government to establish protocols for doing so. Id.
*Note: Rapheal O. Gomez was listed as an Interested Party in Montgomery's California bankruptcy proceedings. See, e.g., In re Dennis Montgomery, ECF 98 (listing Rapheal O. Gomez and Carlotta P. Wells of the DOJ-Civil Division as interested parties). Rapheal Gomez also represented the DOJ in the Montgomery v. eTreppid litigation, at least as early as mid-2007. See Montgomery v. eTreppid, ECF 188 (indicating that Gomez appeared at hearing on behalf of US).
*See also WYE - Aug. 11, 2015, for more details on other issues discussed at the hearing.
Sealed Hearings re: Brian Mackiewicz Criminal Investigation
Melendres. Wang (Melendres Plaintiff Counsel) reiterates Plaintiffs' request for access to the Mackiewicz investigation documents, stating that "[b[ased on what we know already, having observed many of the monitor's interviews, we believe that there's every indicatjon that there ìs very relevant material in these documents ..." See Transcript at 64.
Portions of prior hearings addressing the pending criminal investigations of Brian Mackiewicz* are ordered unsealed. "An MCSO spokesperson confirmed the criminal investigation to the Phoenix New Times in a recent article. Snow said the transcripts for those hearings should now be unsealed." See Jude Joffe Block, "Judge: DOJ May Join Racial Profiling Case Against Sheriff Arpaio," KJZZ, Aug. 11, 2015. See also Megan Cassidy, “Documents: MCSO detective under criminal investigation,” Arizona Republic, Aug. 13, 2015 (reporting that "Recently unsealed documents from a hearing last week confirm that sheriff's officials are looking into Detective Brian Mackiewicz for multiple investigations, both administrative and criminal in nature.")
*Note: According to Stephen Lemons, Mackiewicz has been placed on administrative leave. See Stephen Lemons, “Arpaio Pal Klayman Shot Down, DOJ Okayed, And More In Latest Sheriff Joe Contempt Hearing,” Phoenix New Times, Aug. 12, 2015 (“On Tuesday, Allen also confirmed to me that Mackiewicz has been on administrative leave for about a week now.”); see also Megan Cassidy, “Documents: MCSO detective under criminal investigation,” Arizona Republic, Aug. 13, 2015 (reporting that Mackiewicz is on paid administrative leave).
Monitors Attempts to Interview Mackiewicz and Zullo
Cold Case Posse | Melendres. The Court Monitor also informed the Court that Mackiewicz appeared for his scheduled interview but, per his attorney's advice, refused to answer questions. See Transcript at 50. Zullo also showed up for his monitor interview, but informed the monitors that he was seeking counsel. Id. at 50-51. See also Stephen Lemons, “Arpaio Pal Klayman Shot Down, DOJ Okayed, And More In Latest Sheriff Joe Contempt Hearing,” Phoenix New Times, Aug. 12, 2015.
Seattle Operation | Melendres. According to Lemons, Judge Snow "suggested the possibility that some of the interviews could be folded into depositions the plaintiffs will be doing, and [Arpaio Counsel] Masterson liked that idea.
"For the plaintiffs, Wang said they may reopen old depositions, and she offered a list of new depositions the ACLU is interested in doing.
These include depositions of former MCSO attorney Tim Casey, Deputy Maricopa County Attorney Tom Liddy, Mackiewicz, Zullo, MCSO's head of internal affairs, Captain Steve Bailey; Sergeant Travis Anglin, and private investigator Don Vogel, who probed [Grissom Matter] statements allegedly made by Snow's wife on behalf of the MCSO."
See Stephen Lemons, “Arpaio Pal Klayman Shot Down, DOJ Okayed, And More In Latest Sheriff Joe Contempt Hearing,” Phoenix New Times, Aug. 12, 2015; see also Transcript at 48 (Ms. Wang's discussion of potential additional depositions).
Aug. 12, 2015
Criminal Case. During a hearing in Nevada v. Montgomery -- the criminal case pending over Montgomery's alleged passing of bad checks -- Montgomery's counsel asserts that Montgomery cannot attend the hearing because he is still in Washington state:
And, Your Honor, I'm sorry, this is Mr. Paulson's case. I would ask that you waive his client's appearance. Mr. Montgomery is still in Washington state and is unable to travel because he is suffering from the effects of his stroke. He's working on getting a letter from his doctor, but he needs to get an appointment. Mr. Paulson's requesting a Status Check on Wednesday so that he can update the Court about what happened with the letter.
See Transcript of Proceedings of August 12 Status Check, Nevada v. Montgomery, as filed in Montgomery v Risen, ECF 100, Exhibit B. The Court continues the case for one week, until Aug. 18, 2015.
Notes. Less than a week later, Montgomery will travel to Florida to meet with FBI officials (Aug. 19) and to testify at a deposition in Risen (declining defendants' offer to hold the deposition in Seattle. See Aug. 20.)
Melendres - Montgomery Appeal II. Montgomery (Klayman) files a Notice of Appeal of Judge Snow's order denying Larry Klayman pro hac vice admission (etc). Melendres ECF 1238.
Aug. 13, 2015
Melendres. Arpaio and Sheridan file a "Response" to Montgomery's Aug. 10 Motion to Intervene in their mandamus proceeding pending in the Ninth Circuit. See In re Arpaio and Sheridan, Doc. 5. In their response, they "object to consolidation of their Petition for Writ of Mandamus with Mr.Montgomery’s pending appeal." (Id. at 1.)
Melendres - Montgomery Appeal I. Montgomery (Klayman) files files an "Amended" Emergency Motion for Stay on Appeal in the appeal he previously filed on behalf of Dennis Montgomery. See Montgomery Melendres Appeal I Doc. 6.
Aug. 14, 2015
Montgomery v. Risen. Defendants file a Motion to Modify Scheduling Order and Request for Hearing for August 17 or August 18 re 48 Order, etc. ECF 100. Montgomery files a “Preliminary Response” to Defendants’ Motion. ECF 102.
Magistrate Judge Goodman reschedules the hearing for Aug. 21. ECF 101.
Aug. 17, 2015
Montgomery v. Risen. Defendants file a Notice of Supplemental Authority re their Aug. 4 Memorandum, attaching a transcript from Montgomery’s Nevada criminal proceedings. ECF 103.
Montgomery files a Notice of Hearing by Attorney: Discovery Hearing set for 8/21/2015. ECF 104 (PDF).
Aug. 18, 2015
Melendres. Judge Snow issues an order that ”The seal is lifted on those portions of the Court's hearings in this matter on 7/31/2015 and 8/7/2015 that were held under seal. The parties and represented non-parties are authorized to work out the terms of an appropriate protective order to further implement the terms of this Order. See order for additional details. Signed by Judge G Murray Snow on 8/18/2015.” ECF 1249 (Docket text entry only).
Aug. 19, 2015
Criminal Case. A status conference is held in Nevada v. Montgomery -- the criminal case pending over Montgomery's alleged passing of bad checks -- Montgomery's alleged passing of bad checks. See Nevada v. Montgomery, No. C-10-268764-1, Status Check - Minutes (indicating conference held August 19). The case is continued and another status conference is set for Feb. 10, 2016. During this hearing, Montgomery's counsel tells the court that Montgomery is still in Seattle:
And basically, as you can see from -- from the letters from his doctor, his situation really hasn't changed a whole lot. He's still suffering from the effects of multiple strokes, and he's going through therapy now and he's been advised not to travel at this point.
So, unfortunately, he's not able to travel. He's up in Washington State in the Seattle area right now, still recovering. And I don't know when he's going to get significantly better.
See Transcript of Proceedings at 3, as attached in Montgomery v. Risen, ECF 111-2.
Per Klayman, Montgomery's attorney, as a result of some meetings with the FBI, following an October 2014 meeting he and Montgomery had with Federal D.C. District Court Judge Royce Lamberth, Montgomery’s hard drives are turned over to the FBI and DOJ at the FBI offices in Miami, Florida. Montgomery v. Risen ECF 110 (Aug. 21 Hearing Transcript) at 17. According to Klayman
“[W]e turned it over to both the FBI and the Justice Department.
THE COURT: Jointly?
MR. KLAYMAN: Jointly.
THE COURT: Two copies, one for the FBI and one for the Justice Department?
MR. KLAYMAN: Correct.”
Id. at 16-17. According to Klayman, they don’t notify the Risen defendants of this turnover, but
“ we did arrange, Your Honor, with the FBI that we do have continuing access. Mr. Montgomery has continuing access to documentation which is not classified, or otherwise sensitive and privileged with regard to the government.
So if there is anything that we need from what was turned over, it is still accessible to Mr. Montgomery.
Id. at 17-18. When asked whether the access arrangement is in writing, Klayman asserts that
“There is a document that was produced. It's a letter prepared by the U.S. attorney on behalf of the Justice Department, which says that, in effect, Mr. Montgomery has immunity for turning this over in terms of the documentation.”
* * *
And it is my understanding, to answer your question, because now I remembered what your last question was is that the FBI is moving with great speed on this because Mr. Montgomery is seriously ill and he may not live. …”
Id. at 18, 20. According to Klayman, in arranging to turn over the files to the FBI, he informed them of the pending litigation:
“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: Correct.
THE COURT: 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?
MR. KLAYMAN: Correct.
THE COURT: And you also told her that in the civil litigation the Defense had requested the software so that their expert could examine it?
MR. KLAYMAN: I told her that we wanted continued access to this information because we have civil litigation pending.”
THE COURT: That sounds to me like your way of saying, no, you did not --
MR. KLAYMAN: No, I didn't specifically talk about this matter, but we got an agreement that anything that is not classified we have access to and that would include this.
Id. at 49. On Sept. 9, the FBI will send a letter that contradicts Klayman's claims in material respects.
Aug. 20, 2015
Melendres - Arpaio 9th Cir. Writ Petition. Melendres Plaintiffs file an Opposition to the Montgomery/Klayman “Notice of Filing” (Motion to Intervene) in the Arpaio/Sheridan 9th Circuit mandamus proceedings. In re: Arpaio and Sheridan, Doc. 9.
Melendres - Montgomery Appeal I. Melendres Plaintiffs file an Opposition to Montgomery/Klayman's Emergency Motion for Stay in Montgomery’s 9th Circuit appeal of Judge Snow's denial of Jonathan Moseley’s application for PHV (etc), Montgomery Melendres Appeal I, Doc. 7.
Montgomery v. Risen. Montgomery is deposed for approximately seven hours. See ECF 105 at 2 ("In any event, Plaintiff was deposed by the Defendants’ counsel yesterday...."). Per a later filing by Defendants,
"[Montgomery testified . . . that on August 18 or August 19, Plaintiff, without seeking leave of court or informing Defendants, turned over to the Federal Bureau of Investigation and to the Department of Justice what he claimed was the one and only copy of the software that Defendants have since June 1 requested from Plaintiff in this action."
See ECF 111 at 4.
Drake et al v. Alexander et al. Larry Klayman -- Dennis Montgomery's attorney -- files a whistleblower complaint on behalf of, among others, Thomas Drake and J. Kirk Weibe.See Drake et al v. Alexander at al, No. 1:15-cv-01353-RJL (D.D.C. Aug. 20, 2015) (Complaint (PDF).)
In the fall of 2014, the MCSO retained Drake and Weibe to evaluate Montgomery's Seattle Operation information. As reflected in their Nov. 13, 2014 letter and Nov. 14, 2014 email, Weibe and Drake determined that "none of the data examined reveals or otherwise supports the assertion that the data contained on the hard drive resulted from the clandestine collection and processing of modern digital network communications and is, instead, evidence of an outright and fraudulent con perpetrated on the Government for person gain and cover." (from Nov. 13 letter) In short, they informed MSCO that they'd found that Montgomery "is a complete and total fraud." (from Nov. 14 email).
Aug. 21, 2015
Montgomery v. ACLU. ACLU-related entities file a Motion to Dismiss. ECF 18 (Motion); ECF 19-25 (declarations filed in support of motion to dismiss).
Montgomery v. Risen. Montgomery files a(nother) Response to Defendants’ Motion to Modify Scheduling Order. ECF 105.
Magistrate Judge Goodman presides over the scheduled discovery hearing. ECF 106 (Paperless Minute Entry), ECF 110 (Transcript, attached as an exhibit to ECF 111).
During the hearing, Klayman alleges that in Fall 2014, he went to D.C. Federal Judge Royce Lamberth to obtain assistance in helping Montgomery provide whistleblower information: "we approached the judge in Washington and said how could we get this information to the government because Mr. Montgomery is a whistleblower and no one has wanted to listen to him so far." Hearing Transcript, ECF 111-1, at 13-15. Per Klayman,
- Lamberth then "arranged for meetings with the general counsel of the FBI, James Baker, who then facilitated bringing in agents, FBI agents, to acquire this information [i.e., Montgomery's software and, apparently, output] to collect it. . .." Id. at 16.
- Montgomery has obtained "a letter prepared by the U.S. attorney on behalf of the Justice Department, which says that, in effect, Mr. Montgomery has immunity for turning this over in terms of the documentation." Id. at 18.
-
Montgomery still has "top secret clearance, an SAP clearance, S-A-P." "I believe that he still has top secret clearance and it was never revoked." Id. at 19.
- Montgomery has been dealing with "the number one national security lawyer in the United States for the Justice Department . . . Deborah Curtis." Id. at 39. (Per Klayman, "This guy, Mr. [Rapheal Gomez], is in the civil division, special proceedings branch. This is not his specialty." Id. at 39-40.)
-
Montgomery has been "dealing directly" with James Comey, the FBI director. Id. at 40.
Laura Handman (Defense Counsel) reveals as follows (among other things):
MS. HANDMAN: Well, here is what we learned yesterday.
THE COURT: Okay.
MS. HANDMAN: That Mr. Montgomery has not been here in Miami until Monday. He is using a friend's apartment, a room in a friend's apartment. The friend is there and he will pay rent as needed, but he hasn't paid any rent. He lives in Washington State.
As his lawyer represented just yesterday and last week to the Court in Nevada, the criminal court in Nevada that has postponed his appearances for prosecution in Nevada. Just last week he said that he was too ill to travel to Nevada from Washington State to appear in the Nevada criminal proceedings.
Yet, he was able to come all the way across the country to Miami to pursue his own lawsuit and sit for seven hours. I agree with Mr. Klayman, they were grueling. And he presented just the day before, his lawyers presented information from a doctor saying he was too sick to travel."
Hearing Transcript, ECF 111-1, at 53-54.
Aug. 22, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues a discovery order requiring Montgomery to produce various financial records, medical records, and the source code/software (and related materials). See ECF 107. Per that order,
Montgomery must, by Aug. 26:
re: Request for Production (RFP) 8: “[U]se his self‐described right of continued access to nonclassified information (in relation to his turning over the subject software to the FBI) and produce the software to Defendants. To accomplish this, Plaintiff’s counsel shall, by August 26, 2015, send a letter to FBI General Counsel James A. Baker and Assistant United States Attorney Deborah Curtis, to advise these attorneys that Plaintiff has been ordered by this Court to produce the subject software and was specifically directed to use his right of continued access to non‐classified information to obtain the original software (or a copy of it) from the FBI. Plaintiff shall copy defense counsel on this letter and, by August 27, 2015, shall file the letter under a Notice of Filing on the record in this case.”
by Aug. 28:
- re: RFP 21 - produce bank records proving where his social security payments for disability are directly deposited; and
- re: RFP 9 - advise defense counsel of the Bates number of the document that was supposedly turned over in response to this RFP. If that document was not turned over already, then Plaintiff shall produce that document;
by Aug. 31:
- RFP 7 - produce all documents responsive to this request, “which would now include documents related to the disclosure and production of the subject software to the FBI”;
by Sep. 4
- RFP 52 - produce docs responsive to this request from 2003 to the present that he has in his custody or control, including, but not limited to, bank records, 1099 forms, W2 forms, etc.;
- RFP 33 - produce all medical records that have not yet been produced from April 2014 through the present.
Risen must, by Aug. 26:
"Concerning Plaintiff’s request for the “20,000 pages of documents” referenced by Eric Lichtblau in the relevant email, Defendant James Risen shall … file an affidavit or sworn statement unequivocally stating whether he was ever in possession of the thumb drive on which Mr. Lichtblau held what he described as 20,000 pages of documents, and, regardless of whether he ever was in possession of this thumb drive, if he knows the present whereabouts of this thumb drive. If he does know the current location, then he shall provide the location.”
Melendres - Arpaio Writ Petition. Montgomery files a Reply in Support of Motion to Intervene in Arpaio's Ninth Circuit mandamus proceedings. See In re Arpaio and Sheridan, Doc. 10.
Melendres - Montgomery Appeal I. Montgomery files a Reply in Support of Motion to Stay in his appeal of Judge Snow's order denying Moseley pro hac vice admission. See Montgomery Melendres Appeal I, Doc. 9.
Aug. 26, 2015
Montgomery v. Risen. Montgomery files a Notice in response to the Court's Aug. 22 Order, to which he attaches a copy of the letter he sent to the FBI pursuant to that order. ECF 108.
Aug. 27, 2015
Montgomery v. Risen. Defendants file a Notice of Filing of Declaration of James Risen in response to the Court's Aug. 22 Order. ECF 109. In the Declaration, Risen asserts that he does not recall ever having possession of the flash drive at issue and does not know where it is. ECF 109-1.
Aug. 31, 2015
Montgomery v. Risen. Defendants file a Reply in Support of their Aug. 14 Motion to Modify Scheduling Order in light of Montgomery's failure to produce discovery in a timely manner. ECF 111.
Montgomery files a Motion to Stay Implementation of Paragraph 5 of Magistrate Judge Goodman's Aug. 22 Order -- i.e., production of the source code/software at issue in the case (and materials related to same). ECF 112.
Sept. 1, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues an order for Defendants to file a short response by Sept. 3. ECF 113.
Defendants file Notice of Hearing by Attorney for Sept. 11 re: their "objections to Plaintiff’s seeking to depose certain senior executives and Plaintiff’s seeking to depose the 30(b)(6) representatives of HMH and HMHC with regard to certain matters. ECF 114.
Montgomery files Motion for Leave to File Surreply "responding to misstatements of law and fact filed by Defendants in their [Aug. 31] Reply." ECF 115.
Sept. 2, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues order denying Montgomery's Sept. 1 Motion for Leave to File Surreply. ECF 116.
Defendants file:
- Unopposed Motion to Seal (excerpts of Montgomery's deposition, pending the 10-day period for designating items confidential per protective order). ECF 117. This motion is granted. ECF 118 is "sealed until further notice."
-
Notice of Supplemental Authority re: their May 15 Motion to Dismiss. ECF 119.
Sept. 3, 2015
Montgomery v. Risen. Defendants file Opposition to Montgomery's Aug. 31 Motion to Stay the Aug. 22 Order requiring production of Montgomery's alleged source code/software. ECF 121 (PDF).
Magistrate Judge Goodman issues order denying Klayman's Aug. 31 Motion to Stay the Aug. 22 Order requiring production of Montgomery's alleged source code/software. ECF 122 (PDF).
Defendants file Motion for Expedited Hearing (on open discovery matters, given rapidly approaching discovery deadline). ECF 120 (PDF).
Sept. 4, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues "Updated Discovery Procedures Order" (ECF 123 (PDF)) and order granting Defendants' Sept. 2 Unopposed Motion to Seal (ECF 124 (PDF)).
Montgomery files Objection to Portions of Magistrate Judge Goodman's Aug. 22 Order. ECF 125.
Montgomery v. ACLU. Montgomery, who on July 22 objected to Defendants' Motion for Extension of time, asserting that that a 10-day extension is reasonable (but 21 days not), files a Consent Motion for Extension of Time, requesting a 14-day extension of the deadline -- i.e., until Sept. 22 -- to respond to Defendants' Motion to Dismiss. ECF 26.
Sept. 8, 2015
Montgomery v. ACLU. Judge Moore grants Montgomery's Sept. 4 request for extension of time to respond to motion to dismiss. ECF 27 (paperless order).
Sept. 9, 2015
Montgomery v. Risen. Magistrate Judge Goodman dockets a letter received from FBI General Counsel. "The Undersigned's e-file inbox was copied on this Letter from FBI General Counsel James Baker to defense counsel Larry Klayman that was sent in response to a letter that the Undersigned 107 Ordered Defendant send to the FBI. Attachment #1 is the email to which the PDF of the letter was attached. (Attachments: # 1 Email containing letter)." See ECF 126 (copy of letter).
This letter, from FBI General Counsel James Baker to Larry Klayman, directly contradicts several key assertions that Klayman made during the Aug. 21 Hearing, although it expressly "focus[es] on the conditions under which the FBI took possession of the materials and is not intended as a comprehensive response to other statements made by you to Magistrate Judge Goodman at the August 21 , 2015 hearing." Id. at 1 n.2. Mr. Baker notes also that "[a]s to any factual matters set forth in this letter about which I do not have personal knowledge, I set forth those facts herein based upon information provided to me in my official capacity." Id. at n.1
According to Baker:
"First, the Washington Field Office of the FBI, in conjunction with the U.S. Attorney's Office for the District of Columbia, is engaged with you on the sole issue of your client's allegation that U.S. Government officials may have engaged in violations of federal criminal law. To support this allegation, Mr. Montgomery expressed a desire to voluntarily produce tangible evidence in the form of computer hard drives. Through an attorney proffer, you provided an inventory of these materials. Based upon that proffer and your client's representation that certain relevant information on the drives was highly classified, the Government agreed to grant your client production immunity for those items, as memorialized in a letter agreement dated July 28, 2015. During discussions about the production, you indicated that "time was of the essence" in producing the hard drives to the FBI because of your client's ill health. You did not link any desire to move quickly because of any pending civil litigation.
Second, in advance of providing the hard drives to the FBI, you offered that your client had other materials that were wholly irrelevant to the FBI inquiry that may be on the drives. You also conveyed that your client wished to tum over every computer drive in his possession to the authorities as part of this complaint review process. Accordingly, you requested that Mr. Montgomery be afforded the option to retrieve certain personal information from the drives, if necessary. Your explanation centered on your client's ill health as well as his desire to make a fulsome disclosure to the Government in the context of the FBI inquiry. Again, you did not associate the potential retrieval of this information with any pending civil litigation.
* * *
Next, based again on your client's medical condition and convenience, you specifically requested that Mr. Montgomery be permitted to produce the materials to the FBI on August 19, 2015, in Miami, Florida. On that date, at the FBI Field Office in Miramar, Florida, the FBI took possession of forty-seven computer hard drives from your client that purportedly contain evidence of the above-referenced violations. The FBI took possession of these drives with the sole understanding that the Government would be conducting a review of your client's allegations, and for no other purpose. Further, based upon your client 's representations that Top Secret, compartmented information may reside throughout the hard drives, the Government resolved to treat the materials under review as presumptively classified for security purposes. However, the Government neither agreed to undertake, nor understood any obligation to conduct, a classification review of any of these materials for the purpose of any civil litigation.
Also, during the course of this nearly three hour meeting at the FBI Field Office in Miramar, Florida, you made an off-hand comment that you were in Miami for a deposition the following day in a civil case. You never asked, and the FBI never agreed, for the Government to undertake a classification review of software in connection with that civil case. Notably, for the record, this is in stark contrast with [Klayman's assertions during the Aug. 22 hearing (Transcript p. 48) . . .
* * *
However, turning back to your August 26, 2015 letter, notably absent is any information which would assist the Government in locating and producing the software at issue in Montgomery v. Risen. As you know, when he gave the hard drives to the FBI on August 19, 2015, your client also gave the FBI a sheet of paper stating that the hard drives contained 51.6 million files amounting to 600 million pages. Furthermore, as stated previously, your client claimed that classified information was contained throughout the hard drives.
In view of the massive amount of information on the hard drives, there is no reasonable way for the Government to locate and provide the alleged software, absent specific instructions from your client. And because of the claim that classified information is contained throughout the hard drives, the Government cannot simply provide you with copies of all the hard drives. To that end, please provide the following detailed information: (1) the number or designator of the drive on which the software is present; (2) the file name of the software; (3) the creation date of the software; (4) any other identifier(s) for the software. In the event the software is located, appropriate U.S. Government agencies and/or departments will conduct a classification review of the software. These security measures are necessary based on the representations made by Mr. Montgomery that classified information resides throughout the drives. . . . . "
Id. at 2-4.
Montgomery submits Notice of Filing of Declarations (of Klayman and Dina James, contradicting factual statements made in the FBI letter). ECF 127.
In his declaration, Klayman asserts that
- he told Assistant AG Deborah Curtis about the Montgomery v. Risen litigation during his first meeting with her on July 28, 2015 (id at 3);
- during the meeting in which the materials were turned over to the FBI, Klayman again told Curtis (and other agents present) that "the litigation was going forward and that Mr. Montgomery was being deposed the following day by counsel for Mr. Risen and his publishers" (id. at 4); and
- "[i]n this context, I asked Ms. Curtis if Mr. Montgomery could have access to anything that was not considered to be classified contained in the hard drives, including any unclassified software should it have to be produced, and that was not considered contraband. I further asked her and the FBI agents to determine if it is classified. She agreed on behalf of the U.S. Department of Justice, should it have to be produced in the civil litigation concerning Mr. Risen and his publishers" (id. at 5).
Defendants file a Joint Motion for Leave to Appear Telephonically at the Hearing Scheduled before Judge Goodman on September 11, 2015. ECF 128.
Sept. 10, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues an order granting the Sept. 9 request to appear telephonically at the Sept. 11 hearing ---
" ---but with a caveat. Counsel for both Plaintiff and Defendants have at times interrupted each other and the Undersigned during hearings. The negative consequences arising from mid-hearing interruptions are magnified during a telephone hearing because of the brief built-in audio delay. The likelihood of interruptions is increased when counsel are participating by telephone. Therefore, counsel are encouraged to speak slowly and to wait before speaking, to make sure that opposing counsel and/or the Court have finished speaking. If counsel are unable to do this, whether by design or an inability to control themselves, then counsel will lose the privilege of attending a hearing in this case by telephone, the hearing will be adjourned and will be rescheduled as an in-person hearing and all future hearings before the Undersigned in this case will be in-person hearings."
ECF 129.
Judge Martinez issues three orders:
- Order denying Defendants' May 19 Motion to Stay Discovery Pending Resolution of Motion to Dismiss. ECF 130 (text only entry).
- Order denying Defendants' Sep. 3 Motion for Expedited Status Conference Before Judge Martinez. ECF 131 (text only entry).
- Order granting in part/denying in part Defendants' Aug. 14 Motion Motion Scheduling Order, etc. ECF 132 (text only entry).
Per the last order granting in part the Motion to Modify Scheduling Oder, Judge Martinez rules as follows:
Defendant’s motion for Aug 17-18 hearing is denied as moot (since date has passed);
Defendants’ motion to modify schedule is granted as follows:
Trial is RESCHEDULED to commence during the two-week period beginning Monday, March 21, 2016 before Jose E. Martinez.
* * *
The Scheduling Order is modified as follows:
(1) all discovery, including expert discovery, shall be completed on or before 11/19/15;
(2) a mediator must be selected on or before 11/23/15;
(3) all Daubert, summary judgment, and other dispositive motions must be filed on or before 12/14/15 (in the event that there are any unresolved discovery motions pending fifteen days prior to this date, the moving party shall immediately advise the Court of all such unresolved motions together with their status);
(4) mediation shall be completed on or before 1/21/16;
(5) all pretrial motions and memoranda of law, such as motions in limine, must be filed on or before 2/5/16;
(6) joint pretrial stipulation must be filed on or before 3/1/16;
(7) proposed joint jury instructions, proposed joint verdict form, and/or proposed findings of fact and conclusions of law must be filed on or before 3/14/16;
(8) proposed voir dire questions must be filed on or before 3/16/16;
(9) deposition designations must be filed on or before 3/17/16.
ECF 132.
Montgomery files an Opposition to Defendant's Sept. 2 Notice of Supplemental Authority Concerning Defendants’ Motion to Dismiss or Transfer. ECF 133.
Sept. 11, 2015
Montgomery v. Risen. Magistrate Judge Goodman presides over the scheduled discovery hearing. Minutes of Proceedings (ECF 135 (text entry only); Transcript (tbd).
Montgomery v. Risen | Flynn (S.D. Cal.). Montgomery (Klayman) files, in federal court for the Southern District of California, a "Notice of Motion and Expedited Motion to Compel Compliance with Subpoena. See Montgomery v. Risen, No. 3:15-cv-02035, ECF 1 (PDF) (S.D. Cal.). Per this motion, Montgomery seeks to compel the deposition testimony of Montgomery's former attorney, Michael Flynn. The same day, the court issues a notice that Klayman has violated local rules by failing to file the motion electronically. ECF 2 (PDF).
Sept. 15, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues an order addressing the matters raised in yesterday's hearing. ECF 136. In this order, the Judge
- Sustains Defendants' objections to Montgomery's proposed depositions of Linda Zecher and William Bayers as premature “Apex” depositions and orders that Montgomery "must first exhaust less‐intrusive means of acquiring the information to be gleaned from them before moving to take these depositions."
- Strikes topic 8 (?) from Montgomery's 30(b)(6) depositions, without prejudice as premature
- Strikes topic 9 ("the SEC filings issue") from Montgomery's 30(b)(6) depositions as an "improper subject for deposition at this time."
- Denies Montgomery's request to take a separate 30(b)(6) deposition of the Defendant’s Orlando “office” "because the Orlando office is not a separate legal entity."
- Denies s Montgomery's request to take a second deposition of Risen concerning Risen's affidavit about the thumb drive.
- Finds that no exception to Fed. R. Civ. Proc. 37(a)(5)(A) applies and, therefore, Klayman must pay attorney fees and costs (which he sets at $250).
With respect to the FRCP 27 attorney fees/costs, Magistrate Judge Goodman finds as follows
As the party losing this discovery dispute, Plaintiff (and/or his counsel) is responsible for attorney’s fees under Federal Rule of Civil Procedure 37, unless one or more of a limited list of exceptions apply. Rule 37 establishes a “loser pays” scenario, and requires the Court to enter a costs award, including attorney’s fees, unless an exception applies. No exception applies to Plaintiff’s request for a 30(b)(6) deposition of corporate Defendant’s Orlando office or notice of the SEC filings issue for the 30(b)(6) depositions (topic number 9).
Federal Rule 37(a)(5)(A) provides that the Court “must” require the losing party or attorney or both to pay the costs/fees award, in the absence of an exception. Moreover, the Discovery Procedures Order [ECF No. 48] and the Updated Discovery Procedures Order [ECF No. 123] both specifically caution parties about the rule and its requirement that fees be awarded unless an exception applies. The Undersigned does not believe that Plaintiff should pay the award, as it seems that it was his attorney who stridently pursued these two positions. Therefore, it is Plaintiff’s counsel[2] who will pay the fees award ‐‐ of $250 ‐‐ by September 18, 2015.
* * *
Finally, Plaintiff’s counsel shall not, either directly or indirectly, pass on the fees award to his client. Plaintiff’s counsel shall submit an affidavit of compliance, confirming that the payment was made, to the Court’s e‐file inbox ([email protected]) within three days of making the payment.
[2] The Undersigned does not consider a Rule 37(a)(5)(A) expense‐shifting award to be a sanction, or the imposition of discipline, or an indication that anyone acted in bad faith. Rather, it is merely a consequence of taking certain unsuccessful discovery positions. Thus, this Order would not require Plaintiff’s counsel to answer “yes” if ever asked (e.g., by a prospective employer, by an insurance carrier, by a judicial nominating commission, by a client, or by a prospective client) if he had ever been sanctioned or disciplined.
Id. at 2-3. Judge Goodman orders further that if any party objects to the fee award - or the amount of the fee award, he will hold a hearing on the matter if objections are filed by Sept. 16. "If the challenge is to the amount, then counsel for both sides will be required to submit their billing records for the time in question." Id. at 3.
Defendants file a Notification of Ninety Days Expiring (re: their Motion to Dismiss) as required by Local Rule 7.1(b)(4). ECF 137.
Montgomery files a "Supplement to Plaintiff’s Opposition to Notice of Supplemental Authority Concerning Defendants’ Motion to Dismiss or Transfer," attaching additional portions of the transcript from Montgomery's deposition. ECF 138.
Melendres - Montgomery Appeal I. The Ninth Circuit denies Montgomery's Motion to Stay District Court Proceedings. See Melendres v. Arpaio, Montgomery Proposed Intervenor, No. 15-16440, Doc. 11.
Melendres - Arpaio Writ Petition. The Ninth Circuit denies Arpaio's/Sheridan's Aug. 6 Petition for Writ of Mandamus (seeking disqualification of Judge Snow). See In re: Arpaio and Sheridan, No. 15-72440, Doc 14 (emphasis and link to case added).
Sept. 18, 2015
Montgomery v. ACLU. Montgomery, who on July 22 objected to Defendants' Motion for Extension of time, asserting that that a 10-day extension is reasonable (but 21 days not), and has already obtained a 14-day extension (per Sept. 8 order), files another motion for extension of time - until Oct. 6 - to respond. ECF 28. Per this motion, he seeks another 14 day extension. Id.
Montgomery v. Risen | Flynn (S.D. Cal.). Montgomery attorney Larry Klayman submits a letter to the California Court, attaching a revised/supplemented version of his Sept. 11 motion ans asserting that he has not violated local rules. See Montgomery v. Risen, No. 3:15-cv-02035, ECF 4 (PDF) (S.D. Cal., docketed Oct. 1, 2015).
Melendres | Seattle Operation. Melendres Plaintiffs file a "Notice of Authorities," to which are attached excerpts from the depositions of Sergeant Travis Anglin, Captain Steve Bailey, Tim Casey, and Gerald Sheridan. These excerpts deal, primarily, with issues relating to the Seattle Operation, particularly a Jan. 2, 2014 MCSO staff/attorney meeting re: same. See WYE - Sept. 18, 2015 for details.
Sept. 21, 2015
Montgomery v. Risen. Defendants file:
- Opposition to Montgomery's Sept. 10 Objection to Magistrate Judge Goodman's Aug. 22 Order requiring production of the source code. ECF 140.
- Unopposed Motion to unseal the currently-sealed portions of its Sept. 2 filing (i.e., the information from and excerpts of Montgomery's deposition transcript).
Montgomery v. ACLU. Judge Moore grants Klayman an extension to file his response -- but only until Sept. 28 (not, as Montgomery requested on Sept. 18, until Oct. 6). ECF 29 (paperless order).
Montgomery v. IRS. Judge Holmes issues an order setting Montgomery's case for trial on October 26, 2015. See Montgomery v. IRS, No. 9008-09, Sept. 21, 2015 Order (PDF) (U.S. Tax Court). Per that order:
“This case was on the Court's February 23, 2015 Los Angeles trial calendar, involves mostly substantiation, and is by a considerable margin the oldest on this docket. Pretrial development has slowed and the Court spoke with the parties on September 3, 2015. As a result, it is
ORDERED that this case is added to the Court's October 26, 2015 Los Angeles trial calendar that will be held in Room 1167 of the Roybal Center and Federal Building at 255 E. Temple Street, Los Angeles, California 90012 starting at 10:00 a.m. . . .”
Note. Re: substantiation, according to orders entered by this Tax Court on Feb. 23, and Apr. 29, 2015, Montgomery is apparently alleging that documentation relating to his tax liabilities were destroyed by the FBI.
However, Montgomery entered into a stipulation with the United States on Oct. 2, 2008 that he “do[es] not and will not” institute any court proceeding to challenge the adequacy or completeness of the FBI return of seized property to Mr. Montgomery on March 29 and April 6, 2007, as ordered by this court." The parties entered into this stipulation in the following context: In March 2008, Montgomery sought to avoid court-ordered production of documents and materials in the eTreppid litigation by asserting, under oath, that the FBI had destroyed, damaged, and/or kept some of the materials that it seized during the 2006 searches. After a Sept. 5, 2008 evidentiary hearing -- which was held at his request but at which he failed to appear, and the United States' submission of a post-trial brief on the issue on Sept. 22, 2008, Montgomery entered into the stipulation with the United States on Oct. 2, 2008.
Sept. 23, 2015
Melendres | Seattle Operation. Arpaio files a motion in limine, seeking to exclude, in the upcoming contempt hearings, any evidence relating to the Seattle Operation. See WYE - Sept. 23, 2015 for details.
Sept. 24, 2015
Montgomery v. ACLU. Montgomery files (unilaterally) a Rule 16.1 Scheduling Report. ECF 30 (PDF).
Melendres | Seattle Operation. The Melendres contempt hearing resumes (Day 5). Judge Snow denies Arpaio's motion to exclude Seattle Operation evidence. MCSO Chief Deputy Sheridan testifies in length about several aspects of the Seattle Operation. See WYE - Sept. 24, 2015 for details.
Melendres Testimony re: Seattle Operation. See here for excerpts of transcript re: Sheridan's Sept. 24 testimony regarding the Seattle Operation.
Sept. 25, 2015
Montgomery v. ACLU. Chief Judge K. Michael Moore issues an order dismissing the case due to Montgomery's (Klayman's) failure to comply with the Court's July 6 pre-trial order:
"In violation of the this Court's [July 7, 2015] order, not only is Montgomery's Scheduling Report late, as the deadline to file a report has come and gone without a request for an extension of time by any party, but it is also filed unilaterally and not jointly with the defendants. Accordingly, it is ordered and adjudged that this action is dismissed without prejudice. The Clerk of Court is instructed to close this case."
ECF 31 (paperless order). Per the order, Montgomery may move to reopen this matter upon the filing of a joint scheduling report. Id.
Melendres | Seattle Operation. The Melendres contempt hearing continues (Day 6). Sheridan continues to testify, including about the Seattle Operation. See WYE - Sept. 25, 2015 for details.
Melendres Testimony re: Seattle Operation. See here for excerpts of transcript re: Sheridan's Sept. 25 testimony regarding the Seattle Operation.
Sept. 28, 2015
Montgomery v. Risen. Defendants file Notice of Hearing, set for Oct. 16, 2015. ECF 142. Per the notice, "In accordance with Federal Rule of Civil Procedure 37(b), Defendants seek an order sanctioning Plaintiff for failing to comply with paragraphs 5 and 6 of the Court’s Post-Discovery Hearing Order ECF No. 107" -- i.e., Montgomery's failure to produce his alleged software/source code." Id.
Sept. 29, 2015
Montgomery v. Risen. Montgomery files an "Objection to Limited Portions of Magistrate Judge [Sept. 15] Order" -- objecting to (as characterized by Klayman), "Magistrate Judge Goodman’s decision to exclude from the depositions the topic of the Defendants’ insider trades since receiving the Plaintiff’s November 2014 legal demand letter and failure to disclose the lawsuit in filing SEC reports" and "Magistrate Goodman’s ruling that Plaintiff cannot inquire into the corporate Defendants’ net worth." ECF 143.
Melendres | Seattle Operation. The Melendres contempt hearing continues (Day 7). Sheridan continues to testify (including about the Seattle Operation). Former MCSO attorney Tim Casey also testifies regarding the Seattle Operation. See WYE - Sept. 29, 2015 for details.
Melendres Testimony re: Seattle Operation.
- See here for excerpts of transcript re: Sheridan's Sept. 29 testimony regarding the Seattle Operation.
- See here for excerpts of transcript re: Casey's Sept. 29 testimony regarding the Seattle Operation.
Sept. 30, 2015
Montgomery v. Risen. Montgomery files a "Supplement" to his Sept. 29 Objection, to which he attaches the purportedly relevant deposition notices. ECF 144.
Melendres | Seattle Operation. The Melendres contempt hearing continues (Day 8). Tim Casey continues to testify, followed by Jack MacIntyre and, for a short period, Arpaio. See WYE - Sept. 30, 2015 for details.
Melendres Testimony re: Seattle Operation. See here for excerpts of transcript re: Arpaio's Sept. 30 testimony regarding the Seattle Operation.
Oct. 1, 2015
Montgomery v. Risen | Flynn (S.D. Cal.). The judge overseeing Montgomery's California action to compel Michael Flynn's deposition testimony issues an order listing the multiple rules Klayman has violated with his filing and warning that "[a]ny further failure to comply with the Local Rules may lead to penalties pursuant to Civil Local Rule 83.1 or Criminal Local Rule 57.1." See Montgomery v. Risen, No. 3:15-cv-02035, ECF 3 (PDF) (S.D. Cal.). Thereafter, the "supplemented" motion to compel is docketed. ECF 4 (PDF).
Melendres | Seattle Operation. The Melendres contempt hearing continues (Day 9). Arpaio testifies, as does Kimberly Seagraves, regarding (among other things) the Seattle Operation. See WYE - Oct. 1, 2015 for details.
Melendres Testimony re: Seattle Operation.
- See here for excerpts of transcript re: Arpaio's Oct. 1 testimony regarding the Seattle Operation.
- See here for excerpts of transcript re: Seagraves' Oct. 1 testimony regarding the Seattle Operation.
Oct. 2, 2015
Montgomery v. Risen | Flynn (S.D. Cal.). The judge overseeing Montgomery's California action to compel Michael Flynn's deposition testimony issues an order denying, without prejudice, Montgomery's motion(s) to compel because Klayman is not authorized to practice in California and failed to submit an application for pro hac vice admission. The court grants Klayman until Oct. 9 to submit a motion that complies with local rules (and to submit an application for pro hac vice admission). See Montgomery v. Risen, No. 3:15-cv-02035, ECF 5 (PDF) (S.D. Cal.).
Melendres | Seattle Operation. The Melendres contempt hearing continues (Day 10). Arpaio continues to testify, including about significant aspects of the Seattle Operation. See WYE - Oct. 2, 2015 for details.
Melendres Testimony re: Seattle Operation. See here for excerpts of transcript re: Arpaio's Oct. 2 testimony regarding the Seattle Operation.
Oct. 8, 2015
Melendres - Montgomery Appeal II. The Ninth Circuit issues an order noting that Montgomery/Klayman has filed to file the required mediation questionnaire and holding that Montgomery must, within seven days, (a) file the required document, (b) dismiss the appeal voluntarily, (b) show cause why the appeal should not be dismissed per Ninth Cir. R. 42-1. Melendres v. Maricopa County et al, No. 15-16626, Doc. 3 (9th Cir.)
Melendres | Seattle Operation. The Melendres contempt hearing continues (Day 11). Arpaio continues to testify (including about the Seattle Operation), followed by Lt. Sousa. See WYE - Oct. 8, 2015 for details.
Melendres Testimony re: Seattle Operation. See here for excerpts of transcript re: Arpaio's Oct. 8 testimony regarding the Seattle Operation.
Oct. 9, 2015
Montgomery v. IRS. Respondents (IRS) file their pre-trial memorandum. US Tax Court Docket.
Melendres | Seattle Operation. The Melendres contempt hearing continues (Day 12). Per the Minutes (ECF 1461), Sousa resumes the stand and continues to testify until late morning. Then David Tennyson testifies until the noon break. After lunch, Anglin takes the stand and testifies for awhile, before being excused, addressing several aspects of the Seattle Operation. Tennyson then resumes the stand and testifies through the end of the day. See WYE - Oct. 9, 2015 for details.
Melendres Testimony re: Seattle Operation. See here for excerpts of transcript re: Anglin's Oct. 9 testimony regarding the Seattle Operation.
Oct. 13, 2015
Melendres | Seattle Operation. The Melendres contempt hearing continues (Day 13). Per the Minutes (ECF 1463), Tennyson resumes the stand and continues to testify until after 3 PM. Then Captain Steve Bailey takes the stand and testifies. See WYE - Oct. 13, 2015 for details.
Montgomery v. Risen | Flynn (S.D. Cal.). Klayman submits
- Motion to Compel (this one signed by local attorney Naveed Mahboobian). See ECF 6 (PDF).
- Request to Appear Pro Hac Vice. See ECF 7 (PDF).
Oct. 14, 2015
Melendres | Seattle Operation. The Melendres contempt hearing continues (Day 14). Per the Minutes (ECF 1470), Bailey resumes the stand and continues to testify until late morning. Then Donald Vogel (private investigator) takes the stand and testifies testifies until late afternoon. Thereafter, Bailey resumes the stand again and testifies for the remainder of the day. See WYE - Oct. 14, 2015 for details.
Oct. 15, 2015
Montgomery v. Risen | Flynn (S.D. Cal.). The Court issues a minute order:
"Plaintiff filed 291 pages in support of his motion papers filed in this case on 10/13/2015 (see ECF No. 6). By 10/16/2015, Plaintiff shall provide paper courtesy copies to Judge Burkhardt’s chambers as required by both Magistrate Judge Jill L. Burkhardt’s Civil Chambers Rules and Section 2(e) of the Electronic Case Filing Administrative Policies and Procedures Manual for the United States District Court for the Southern District of California (both of which are available on the district court’s web site)."
Oct. 16, 2015
Montgomery v. Risen. Magistrate Judge Goodman presides over the hearing scheduled per Defendants' Sept. 28 notice. See Minute Order (ECF 151 (paperless entry)); Transcript (ECF 163, as filed at 166-3).
Defendants file their Opposition Klayman's Sept. 29 Objection to Magistrate Judge Goodman's Sept. 15 Order re: Plaintiff's requested discovery. ECF 152.
Oct. 19, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues his Post-Discovery Hearing (Oct. 16) Order (ECF 154), which requires the following:
"(1) Defense counsel shall, by October 19, 2015, file a Notice of Filing on CM/ECF, attaching her October 5, 2015 email to Assistant General Counsel at the FBI, Ted Schwartz, and his October 6, 2015 response.
2. Defendants filed these communications on October 19, 2015. [ECF No. 153].
(2) Plaintiff shall, by October 20, 2015, file a Notice of Filing on CM/ECF, attaching all communications between Plaintiff (and/or Plaintiff’s counsel) and the FBI and/or Assistant United States Attorney Deborah Curtis concerning the turning over of the software and the efforts to retrieve it from the FBI, including all communications in response to FBI General Counsel James Baker’s request for additional information that the Court was copied on from September 8, 2015 [ECF No. 126]. All of these communications shall be turned over to defense counsel as well, even if Plaintiff attempts to file the documents under seal. 3 If the documents are filed under seal, then defense counsel are reminded that they are bound by the rules of this Court concerning under‐seal filings. ["all" emphasized in original]
3. The Undersigned is by no means indicating that any such motion to seal will be granted if it is filed. This Court is a Court of public record, and so the process ‐‐ including all filings ‐‐ is presumptively open to the public, except in exceptional circumstances where good cause is shown. The communications at issue, on their face, appear to be fairly standard and innocuous; however, should a motion to file under seal be entered, then the Court will consider it and expect to see good cause for such an extraordinary remedy.
(3) Plaintiff shall, by October 21, 2015, send the FBI, via email to Assistant General Counsel Schwartz, a comprehensive set of instructions (the best available to Plaintiff) as to how to pinpoint the software amidst the massive amount of data that was turned over to the FBI. If Plaintiff cannot tell the FBI exactly how to identify the software, then he shall so state in the email. Copies of that email shall be filed with the Court (publicly) on CM/ECF by October 22, 2015.
(4) Plaintiff shall, by October 26, 2015, produce the software at issue in this case to Defendants. If the software is not turned over by this date and Defendants seek significant sanctions (i.e. dismissal or an adverse inference), then Defendants may file a motion and/or memorandum of law if they are still seeking sanctions. If Defendants file a motion, then the Undersigned will issue a briefing schedule order.
Defendants file their Notice of Filing E-mail Exchange between Defendants' Counsel and the FBI. ECF 153.
Oct. 20, 2015
Montgomery v. Risen. Montgomery files unopposed Motion For Extension Of Time To File Motion To File Under Seal. ECF 155.
Attached to this motion is a letter from Rapheal Gomez of the DOJ responding to Defendants' discovery requests served on the CIA. See id.
Melendres | Seattle Operation. Arpaio counsel files papers stating that it has complied in part with the Court's order to produce Mike Zullo documents but that Zullo has invoked the Fourth Amendment and Fifth Amendment with respect to a portion of those documents. See WYE - Oct. 20, 2015 for more details.
Oct. 21, 2015
Montgomery v. Risen. Montgomery files:
- Motion for Leave to File Seal Dennis Montgomery. ECF 156 This document is "signed" with "/s/ Larry Klayman" (typed).
- Supplement to Oct. 20 "Notice." ECF 158.
The Motion (ECF 156) states that "Plaintiff sought consent for this motion from Defendants. Defendants do not grant consent to this motion." Id. at 3. It has a /s/ signature for Klayman.
The Supplement (ECF 158) contains an affidavit from Montgomery, stating (in part) as follows:
1. Based on my personal knowledge and belief, upon searching my memory, I do not believe that I have had access to any of the subject software, nor did I provide it to the Federal Bureau of lnvestigation ("FBI") when I turned over the drives pursuant to my immunity agreement of July 28, 2015 and the inventory of what I turned over. However, I am today providing some additional information (attached) which may allow the FBI to see if the software - in whole or in part - exists on the drives I turned over to the FBI to conduct its ongoing classification review.
2. These documents have been and are being filed under seal and are being produced to Defendants' counsel and Magistrate Judge Goodman subject to the court's protective order.
Id.
The court clerk issues a "Notice of Deficiency" re: Montgomery's Motion (ECF 156): "Document(s) missing required original signature(s) (Fed.R.Civ.P. 11(a))."
Melendres | Seattle Operation. Melendres Plaintiffs issue a subpoena commanding Arpaio counsel to turn over the remaining Zullo documents. See WYE - Oct. 21, 2015 for more details.
Oct. 22, 2015
Montgomery v. Risen. Montgomery files:
- Motion for leave to file under seal. This motion appears to be identical to the Oct. 21 motion (ECF 156) except that (a) it has a different signature page and (b) it is missing the Gomez/CIA letter referenced as Exhibit 2.) ECF 159.
Note. The signature on this document is as follows:
- "Second Motion" for leave to File Under Seal. ECF 160 Per this motion, "Plaintiff sought consent for this motion from Defendants. Defendants do not grant consent to this motion." Id. at 3. (This motion also has a different signature -- and this signature appears to be different than the signature contained in ECF 159.)
Note. The signature on this document is as follows:
Note 2. According to Klayman's Oct. 26 Objection, "in compliance with Magistrate Judge Goodman’s Order of October 19, 2015, Plaintiff also provided further instructions to the FBI by email, a copy of which was filed along with a motion to file under seal on October 22, 2015 (Docket No. 160)." See Oct. 26, 2015.
The court clerk issues a "Notice of Filing Deficiency re: ECF 159 and 160: "Document(s) missing required original wet signature(s) (Fed.R.Civ.P. 11(a))."
Oct. 23, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues an order re: Montgomery/Klayman's multiple filings on motion to seal (i.e., ECF 156, 159, 160):
Defendants shall, by October 30, 2015, file an omnibus response of no more than five double-spaced pages, excluding signature block and certificate of service. Plaintiff may, by November 4, 2015, file an omnibus optional reply of no more than two double-spaced pages, excluding signature block and certificate of service.
ECF 162 (paperless entry).
Melendres | Seattle Operation. Melendres Plaintiffs are scheduled to depose Mike Zullo per prior notice of deposition. ECF 1446. While Zullo apparently shows up, he reportedly "refuse[s] to answer any questions until he gets an attorney. The CCP honcho claims to be without one presently." See "Update 10/23/2015" in Stephen Lemons, “Joe Arpaio's Investigator Mike Zullo Invokes 5th,” Phoenix New Times, Oct. 21, 2015.
Montgomery Melendres Appeal I. Montgomery files his Opening Brief and corrected excerpts of the record. See 15-16440, Doc. 13 (Opening Brief); Doc 13 ex (Opening Brief with Excerpts of Record).
Oct. 26, 2015
Montgomery v. Risen. Montgomery files "Objection of Magistrate Judge [Oct. 19, 2015] 154 Order to District Court and Request to Stay. ECF 164. In this filing, Montgomery objects to Magistrate Judge Goodman's Oct. 19 order requiring production of the source code by Oct. 26, 2015.
Melendres | Seattle Operation. Judge Snow calls a late-morning hearing regarding Arpaio counsels' Oct. 20, 2015 notice that Zullo has invoked the 4th and 5th Amendment in connection with document production.
According to Oct. 27 tweets from Stephen Lemons after reading the transcript of these proceedings, Arpaio counsel indicated that "the fear of Zullo is potential criminal liability re: his relationship [with] Montgomery."
Thereafter Judge Snow issues an order that, among other things, sets an expedited briefing schedule on the issue of Zullo's invocation of the 5th as to documents.
See WYE Timeline - Oct. 26, 2015 for details.
Montgomery v. IRS. Montgomery's IRS trial is scheduled to begin today, per the Tax Court's Sept. 21 Order. However, as reflected in the Court's order dated today:
"This case is on the Court's October 26, 2015 trial calendar for Los Angeles, California. The case was called on October 26, 2015. The petitioners did not appear, and Mr. Montgomery had asked for yet another continuance, albeit not in the form of a motion, on health grounds. There has been minimal pretrial preparation in the more than six years that this case has been docketed.
It is therefore ORDERED that this case is continued.
It is further ORDERED that this case is continued for trial to the Trial Session of the Court scheduled to commence on April 11, 2016, at 10:00 a.m., in Room 1167, Edward R. Roybal Center & Federal Building, 255 E. Temple Street, Los Angeles, CA 90012.
It is further ORDERED that the Court's May 25, 2015, Los Angeles, California Standing Pretrial Order, remains in full force and effect.
It is further ORDERED that respondent may move to dismiss this case for lack of prosecution on or before January 11, 2016.
Absent exceptionally unusual circumstances the Court will grant no more continuances in this case.
This Order constitutes official notice of its contents to the parties."
See Oct. 26, 2015 Order.
Oct. 27, 2015
Montgomery v. Risen. Montgomery files Notice of Discovery Hearing set for Nov. 4, 2015. Per this Notice,
"The hearing is regarding the issue of the obstruction of Plaintiff being able to subpoena and depose Michael Flynn, the former attorney of Plaintiff who has violated attorney client confidences and work product and made false accusations against Plaintiff, as well as provided Defendants with a thumb drive of over 20 thousand pages of material, much of which is privileged and remains privileged. The hearing also concerns Defendants’ harassment of Plaintiff, his wife, his daughter and son in law, by use of the perceived threatening use of their grandchildren and children, while Mr. Montgomery was and remains critically hospitalized and while his wife is in a state of extreme emotional distress."
Melendres | Seattle Operation. The Melendres contempt proceedings resume today and Mackiewiz testifies regarding the Seattle Operation.
See WYE Timeline, Oct. 27, 2015 for additional details.
Oct. 28, 2015
Montgomery v. Risen. Defendants file their Memorandum of Law in Support of Motion for Sanctions. ECF 166.
Melendres | Seattle Operation. The Melendres contempt proceedings resume today and both Mackiewicz and Bailey testify regarding the Seattle Operation.
See WYE Timeline, Oct. 28, 2015 for additional details.
Oct. 29, 2015
Melendres | Seattle Operation. The Melendres contempt proceedings resume today and Bailey testifies regarding the Seattle Operation.
See WYE Timeline, Oct. 29, 2015 for additional details.
Oct. 30, 2015
Montgomery v. Risen. Defendants file Opposition to Montgomery's motions to file FBI correspondence under seal. ECF 167.
Montgomery v. Risen | Flynn (S.D. Cal.). The court hearing Montgomery's motion to compel Michael Flynn's compliance with a subpoena issues an order denying the motion. ECF 9.
Nov. 2, 2015
Montgomery v. Risen. Defendants file a Joint Motion for Leave to Appear Telephonically at November 4, 2015, Hearing. ECF 168.
Magistrate Judge Goodman grants this motion, with a caveat:
However, the parties shall note the following: When counsel's office called the Undersigned's chambers to schedule this hearing, it was noted that the Court's general policy is that for any discovery hearing expected to last more than 30 minutes, the Undersigned expects all counsel to appear in person. It is difficult to predict with certainty whether the issues flagged for the hearing will last more than 30 minutes, but, if the parties predict that more than 30 minutes is needed, then they shall appear in person or reschedule the hearing. If the parties appear by telephone, then the Court will end the hearing after 30 minutes, whether we have completed all the issues or not."
ECF 169 (paperless order).
Montgomery files a Noticee/Pracipe, in which Klayman explains his understanding that he has 14 days to respond to Defendants' Oct. 28 Memorandum of Law in Support of Motion for Sanctions.
Nov. 3, 2015
Montgomery v. Risen. Montgomery files a "Notice of Hearing" in which he asserts that he is changing the subject matter of the hearing scheduled for tomorrow. ECF 171.
Nov. 4, 2015
Montgomery v. Risen. Defendants file an Objection to Montgomery's Nov. 3 "Notice of Hearing" (attempting to change the subject matter of today's hearing. ECF 172.
Defendants also file Notice of the California court's Oct. 30 order denying Montgomery's motion to compel Flynn's testimony. ECF 173.
Telephonic discovery hearing is scheduled for today.
Montgomery v. Risen | Flynn (S.D. Cal.). Montgomery files a Motion for Reconsideration of the Court's Oct. 30 order denying his motion to compel Flynn testimony. ECF 10.
Nov. 5, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues an order that
- Awards Defendants $1,500 in attorneys fees for costs incurred responding to Montgomery's Nov. 3 "modified notice" of hearing and requires that fees must paid by Klayman, not Montgomery.
- Denies Montgomery's request to order Flynn's deposition,noting that "Plaintiff’s bald assertions and mere suspicious of collusion among defense counsel and the third-party witness -- based upon the fact that the witness used defense counsel's first name in an email -- is not sufficient for this Court to enter any sort of ruling (even if this Court had jurisdiction over the issue, which it does not)
- Rejects Montgomery's assertions that defendants were harassing his family: "[B]ased upon the explanation proffered at the Discovery Hearing, the Undersigned concludes that no inappropriate action was taken... In fact, if anyone acted improperly, it appears to be Plaintiff’s daughter, who, according to defense counsel’s proffer, repeatedly lied to the process server in an effort to trick him into thinking that he had the wrong address."
Montgomery v. Risen | Flynn (S.D. Cal.). Magistrate Judge Burkhardt issues an order denying Klayman's Motion for Reconsideration, noting (among other things):
- "Although not relied on for purposes of this order, the Court notes that contrary to Plaintiff’s factual assertion otherwise, the District Court for the Central District of California’s Southern Division appears to be less than 100 miles from the Rancho Santa Fe address listed for Mr. Flynn on the Proof of Service filed in this case" -- and --
- With respect to proper service, "The Court remains unpersuaded that Plaintiff effectuated proper service of the subpoena. ... Counsel’s vague, untimely, and unsworn claims that “any and all witness fees were sent by U.S. Mail” do not constitute evidence that the fees and mileage were tendered as required by Rule 45."
ECF 11. Judge Burkhardt also notes that "Plaintiff’s motion was filed in violation of this district court’s local rules and the chambers rules .... Therefore, to the extent Plaintiff believes that he has successfully filed other motions in addition to the instant motion for reconsideration (specifically an objection to the undersigned’s October 30, 2015 Order and a motion for an expedited hearing of that objection), the Court clarifies that he has not...." Id.
Nov. 6, 2015
Melendres. Judge Snow issues order requiring Arpaio attorneys to turn over Zullo documents relating to the Seattle Operation, including Montgomery documents. See WYE Timelne, Nov. 6 for more details.
Nov. 9, 2015
Melendres. Zullo is deposed today in the Melendres contempt proceedings. He invokes the Fifth Amendment on Seattle Operation matters over 300 times. See WYE Timeline - Nov. 9 for details.
Nov. 10, 2015
Melendres. The Melendres contempt proceedings resume today. Zullo takes the stand for the last 15 minutes of the hearing and is asked many questions about the Seattle Operation. Zullo reportedly invokes the Fifth Amendment as to all substantive questions -- about 40 times in 15 minutes. See WYE Timeline - Nov. 10 for details.
Nov. 12, 2015
Montgomery v. Risen. Defendants file their Response to Oct. 26 Objection to Magistrate Judge Goodman's Oct. 19 Order. ECF 176.
Melendres. The Melendres contempt proceeding is scheduled to continue today. Zullo resumes the stand. Zullo reportedly again invokes the Fifth Amendment (reportedly more than 200 times) during the morning session. However, he begins answering questions regarding the Seattle Operation in the afternoon. See WYE Timeline - Nov. 12 for details.
Montgomery v. Flynn (C.D. Cal). Montgomery files a miscellaneous action in Federal District Court - Central District of California, seeking to compel former attorney Michael Flynn to appear at deposition. See Montgomery v. Flynn, No. 8:15-mc-00031-CJC-JCG, ECF 1 (C.D. Cal. filed Nov. 12, 2015)
Montgomery v. Simon & Schuster et al ("S&S") (S.D.N.Y.). Montgomery files a miscellaneous action in Federal District Court - Southern District of New York ,seeking to compel Simon & Schuster and certain of its employees to respond to Montgomery subpoenas. See Montgomery v. Simon & Schuster et al, No. 1:15-mc-00363-P1 , ECF 1 & 2 (S.D.N.Y., filed Nov. 12, 2015)
Nov. 13, 2015
Melendres. The Melendres contempt proceeding is scheduled to continue today. Zullo again testifies. See WYE Timeline - Nov. 13 for details.
Nov. 16, 2015
Montgomery v. Risen. Montgomery files his Opposition to Defendant's Oct. 28 memorandum of law in support of its motion for sanctions against Montgomery for failure to turn over the alleged software at issue in the case. See ECF 178.
Exhibits to this filing include (but are not limited to):
- The FBI July 28, 2015 Letter setting for the limited production immunity granted to Montgomery in connection with his turnover of the Hard Drives (ECF 178-8) and
- A CIA Nov. 13, 3015 letter (ECF 178-3) in which the CIA notifies Risen defendants that it will not provide any requested information -- except that:
"The CIA conducted a search of its records and did not locate "a copy of Montgomery's software, including but not limited t:o video compression software or noise filtering software Montgomery allegedly used to detect hidden Al
Qaeda messages in Al Jazeera broadcasts." Id.
Nov. 17, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues an order granting Defendants until Nov. 30 to file "an optional reply (of up to 10 double-spaced pages) in further support of their [Oct. 28] sanctions motion, replying to Plaintiff's [Nov. 16] opposition." ECF 179 (paperless order) (internal citations omitted).
Montgomery files a Motion to File Under Seal, in which he asks to file exhibits relating to his Nov. 16 Opposition to Defendants' Motion for Sanctions under seal. ECF 180. This motion is signed by "P. Amado for Larry Klayman."
Nov. 18, 2015
Montgomery v. IRS. IRS files Motion to Dismiss for Lack of Prosecution. See Docket (US Tax Court, No. 009008-09).
Nov. 19, 2015
Montgomery v. Risen. Montgomery files a "Supplement" to his Nov. 18 motion to extend discovery deadline. See ECF 182.
Montgomery v. S&S (SDNY). Simon & Schuster file an Opposition to Montgomery's Nov. 12 Motion to Compel (see ECF 5) as well as an Emergency Motion to Quash Subpoena (see ECF 6).
Nov. 20, 2015
Melendres. Closing arguments are made at today's hearing. See WYE Timeline - Nov. 20, 2015 for details.
Montgomery v. S&S (SDNY). The court clerk issues notice of filing errors re: S&S Nov. 19 filings of Opposition to Motion to Compel and Emergency Motion to Quash Subpoenas. ECF 7, ECF 8.
Simon & Schuster et al refiled their
- Memorandum of Law in Opposition to Montgomery's Nov. 12 Motion to Compel. ECF 9.
- Emergency Motion to Quash Subpoena. ECF 11
- Declaration of Bruce S. Rosen, Esq. in Support of Emergency Motion to Quash and in Opposition to Motion to Compel. ECF 10.
Nov. 23, 2015
Montgomery v. Risen. Defendants file notice of selection of mediator. ECF 183.
Montgomery v. S&S (SDNY). Tina Bennett files
- Cross-Motion to Quash or Modify Subpoena. ECF 13
Memorandum of Law in Support of Cross-Motion to Quash or Modify Subpoena. ECF 14.
Declaration of Kevin H. Marino in Support of Cross-Motion to Quash or Modify Subpoena. ECF 15.
Declaration of Svetlana Katz in Support of Cross-Motion to Quash or Modify Subpoena. ECF 16.
Proposed Order re Cross-Motion to Quash or Modify Subpoena. ECF 17.
- Memorandum of Law in Opposition to Montgomery's Nov. 12 Motion to Compel. ECF 18.
Declaration of Kevin H. Marino in Support of Cross-Motion to Quash or Modify Subpoena. ECF 19.
Declaration of Svetlana Katz in Support of Cross-Motion to Quash or Modify Subpoena. ECF 20.
Risen et al file Memorandum of Law in Opposition to Motion to Compel. ECF 22.
Nov. 24, 2015
Montgomery v. Flynn (C.D. Cal). Risen et al file Response/Opposition to Montgomery's Motion to Compel. ECF 6.
Montgomery v. S&S (SDNY). Montgomery files his Reply in Opposition to Bennett's Cross-Motion. ECF 23.
Klayman files Motion to appear Pro Hac Vice. ECF 24. The Court Clerk issues notice of deficient docket entry re: this motion. Klayman refiles motion. ECF 27.
The Court Clerk issues notice to Bennett to refile ECF 21 with different event type designation.
Bennett files Letter Motion for Leave to File Supplemental Declaration submitting email correspondence addressed to Judge Denise L. Cote from Kevin H. Marino. ECF 26.
Nov. 25, 2015
Montgomery v. Flynn (C.D. Cal). Montgomery files a Reply in Support of his Motion to Compel (ECF 7) and Notice of Filing of Attachment to Reply (ECF 8).
Montgomery v. IRS. US Tax Court Judge Holmes issues order:
"This case was on the Court's October 26, 2015 trial calendar for Los Angeles, California, but petitioners did not appear. There has been minimal pretrial preparation in the more than six years that this case has been docketed and on November 18, 2015 respondent moved to dismiss the case for lack of prosecution. It is therefore ORDERED that petitioners file a response to respondent's motion on or before December 30, 2015."
Case No. 009008-09 Nov. 25 Order.
Nov. 27, 2015
Montgomery v. S&S (SDNY). Risen et al file Opposition to Klayman's Nov. 23 Motion to Appear Pro Hac Vice. ECF 28.
Nov. 30, 2015
Montgomery v. Risen. Defendants file their Reply in Support of their Oct. 28 Motion for Sanctions. ECF 184.
Montgomery v. S&S (SDNY). Bennett's Nov. 24 Letter Motion (to submit supplemental Marino Declaration) is granted. ECF 29. The Marino Declaration is docketed. ECF 30 (in support of Cross Motion); ECF 31 (in support of Opposition to Motion to Compel).
The Court (Judge Denise L. Cote) issues an order granting Klayman's Motion to Appear Pro Hac Vice and setting an in-person hearing for Dec. 1. ECF 33.
Montgomery files a Response to the Court's order, stating that Klayman will appear in person at the Dec. 1 hearing. ECF 34.
Dec. 1, 2015
Montgomery v. Flynn (C.D. Cal). Magistrate Judge Jay C. Gandhi issues an order denying Montgomery's Motion to Compel:
"The motion is DENIED.
In sum, among other things, Judge Burkhardt of the U.S. District for the Southern District of California already addressed this motion and concluded that “the Court is not persuaded that the subpoena was properly served.” See Montgomery v. Risen, Case No. 15-CV-2035-AJB-JLB (S.D. Cal. Oct. 30, 2015), ECF No. 9. Plaintiff then filed a reconsideration motion, which was denied, and Judge Burkhardt echoed her earlier findings, including that “the Court remains unpersuaded that Plaintiff effectuated proper service of the subpoena” and “the record is deficient with respect to whether the fees and costs for mileage were tendered to Mr. Flynn for 1 day attendance at deposition as required by Rule 45.” Id., ECF No. 11. Judge Burkhardt found “counsel’s vague, untimely, and unsworn claims that ‘any and all witness fees were sent by U.S. Mail’ do not constitute evidence that the fees and mileage were tendered as required by Rule 45.”
Montgomery v. S&S (SDNY). Judge Cote holds the scheduled hearing on the motion to compel and motions to quash. See Transcript (ECF 37.)
Judge Cote issues an order granting in limited part Montgomery's Motion to Compel:
"For the reasons stated in the record of the December 1, 2015 conference, it is hereby ORDERED that, by December 15, the defendants in the above-captioned matter shall provide the plaintiff with documents that are responsive to the following request: Documents in the possession or control of Priscilla Painton or Tina Bennett that indicate whether Simon & Schuster communicated its reasons for its decision not to publish Pay Any Price to Mr. Risen, Ms. Bennett, or Houghton Mifflin Harcourt, and if such documents exist, they must be produced to the extent they discuss passages in the book related to Dennis Montgomery, the timing of the publication date, or the organization of the book. The defendants document search will be limited to the time period of September 15, 2012 through November 7, 2013. IT IS FURTHER ORDERED that, after the production of responsive documents, if any, the parties shall meet and confer to discuss possible depositions, their length, and their scope. By December 22, the parties shall submit letters of no longer than two pages to inform the Court of any agreement they have about depositions and any remaining disputes about deposition discovery."
ECF 35.
Judge Cote also issues an order directing the Clerk of Court to assign this matter to her docket. ECF 36.
Dec. 2, 2015
Montgomery v. S&S (SDNY). This matter is reassigned to Judge Cote per her Dec. 1 order.
Dec. 4, 2015
Montgomery v. Risen. Defendants file:
- Opposition to Montgomery's Nov. 17 Motion to File Under Seal. ECF 185.
- Opposition to Montgomery's Nov. 17 Motion for Extension of Discovery Deadline. ECF 187.
The parties file Amended notice of mediator selection. ECF 186.
Montgomery files a Request for Stay and “Supplement” to his Oct. 26 Objection to the Magistrate Judge’s Oct. 20 Order. See ECF 188.
Dec. 8, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues an order scheduling hearing on Defendants’ Oct. 28 Motion for Sanctions – to be held Jan. 5, 2016. See ECF 191. In this order, Judge Goodman requires the parties to file – by Dec. 28 – responses to several issues. See id.
Defendants file a Motion for Leave to File Excess Pages for Motion for Summary Judgment and Statement of Material Facts. See ECF 189.
Judge Martinez issues a paperless order requiring Plaintiffs to file an expedited response (by Dec. 10) to Defendants' Motion to Exceed Page Limitations for Motion for Summary Judgment and Statement of Material Facts. See ECF 190.
Montgomery v. Risen et al (“Burgyan Discovery Proceedings”) (W.D.Wash). Risen Defendants file Motion to Compel Compliance with Subpoena. See Montgomery v. Risen, No. 2:15-cv-01955-JLR (W.D. Wash.), Motion to Compel - ECF 1 (PDF); Ratner Declaration in Support of Motion to Compel - ECF 2 (PDF); Exhibits to Ratner Declaration - ECF 2-1 (PDF). (The case is initially designated as Case No. 2:15-mc-187, and assigned to Judge Robert S. Lasnik.)
Dec. 9. 2015
Montgomery v. Risen. Montgomery files an Opposition to Defendants’ Dec. 8 motion to exceed page limitations (on summary judgment motion). See ECF 192.
Montgomery also files a motion to reschedule the Jan. 5, 2016 hearing set per Magistrate Judge Goodman’s Dec. 8 order. See ECF 193.
Dec. 10, 2015
Montgomery v. Risen. Magistrate Judge Goodman issues an order requiring Defendants to respond, by Dec. 15, in no more than two pages (excluding signature block and certificate of service) to Montgomery’s Dec. 9 motion to reschedule the Jan. 5, 2016 hearing. See ECF 194.
Istvan Burgyan Discovery Proceedings (W.D.Wash). Montgomery, filing pro se, submits an Opposition to the Dec. 8 Motion to Compel. See ECF 4 (PDF). This Opposition bears remarkable similarities to pleadings filed by Larry Klayman in the other Montgomery cases. Then again, as Defendants later note:
“Plaintiff filed pro se even though he is represented by counsel, Larry Klayman, in the underlying action. Mr. Klayman has not sought to appear in this action in this court. Daly v. Far E. Shipping Co. PLC., 238 F. Supp. 2d 1231, 1235-36, 1241 (W.D. Wash. 2003) (noting that other courts have revoked Mr. Klayman’s pro hac vice status and his “contentions regarding the conduct and demeanor of this Court are bizarre and without merit.”), aff'd sub nom. Daly v. Fesco Agencies NA Inc., 108 F. App’x 476 (9th Cir. 2004).”
See ECF 5 (filed Dec. 24). Given Montgomery’s filing, the case is redisignated as Civil Case No. 2:15-cv-1955 and reassigned in rotation to the Honorable James L. Robart.
Dec. 11, 2015
Montgomery v. Risen. Judge Martinez issues a paperless order granting Defendants’ Dec. 8 motion to file excess pages (re: summary judgment). See ECF 195.
Defendants file a “Notice of Supplemental Authority Related to All Filings Concerning Plaintiff's Software.” See ECF 196. This notice attaches a Dec. 11 communication from the FBI stating as follows:
“Mr. Klayman – this responds to your November 16, 2015 email. I am advised that the Dropbox link which you forwarded from Mr. Montgomery is to a file filtering program which is not of any use in locating the alleged software in the absence of the specific information which the FBI had requested in its September 8 letter, namely, the number or designator of the drive on which the software is present and the file name of the software. As a result, and given the fact that Mr. Montgomery does not believe that the FBI is in possession of the software, the FBI’s position as stated in my October 23 email remains unchanged.”
Id. at Exhibit 1. (Note: The Oct. 23 email essentially said that since Montgomery was now claiming that he didn’t think he turned the software over to the FBI, the FBI would not search for it.)
Dec. 14, 2015
Montgomery v. Risen. Defendants file an Opposition to Montgomery’s Dec. 9 motion to reschedule the Jan. 5, 2016 hearing. See ECF 197.
Magistrate Judge Goodman issues an order denying Montgomery’s Dec. 9 motion to reschedule the Jan. 5, 2016 hearing. See ECF 198.
Defendants file:
- Motion for Summary Judgment. See ECF 201.
- Statement of Undisputed Material Facts (re: summary judgment motion). See ECF 202.
- Declaration of James Risen (with exhibits). See ECF 203.
- Declaration of Laura R. Handman (with exhibits). See ECF 204.
- Unopposed Motion to file certain exhibits relating to their summary judgment motion under seal. See ECF 199.
Dec. 17, 2015
Montgomery v. Risen. Judge Martinez issues an order granting Defendants’ unopposed motion to file certain exhibits under seal: “The Proposed Sealed Documents are sealed through December 17, 2015. If, by December 17, 2015, Plaintiff does not make the showing required by law in order to maintain the Protective Order Concerning Confidential Information [ECF No. 89] as to the Proposed Sealed Documents, then the Proposed Sealed Documents will be unsealed. See ECF 205 (Docket text entry).
Defendants file Second Notice of Notification of Ninety Days Expiring (re: their Apr. 28 Motion to Dismiss Complaint. See ECF 206.
Dec. 22, 2015
Montgomery v. S&S (SDNY). Simon & Schuster files a Joint Letter addressed to Judge Denise L. Cote from Bruce S. Rosen dated December 22, 2015 re: Judge Cote's December 1, 2015 Order. ECF 39.
Judge Cote issues endorsement: The Letter (above) is “Approved. A telephone conference will be held on 12/29 at 2:30 p.m.” ECF 40.
Dec. 24, 2015
Istvan Burgyan Discovery Proceedings (W.D.Wash). Risen Defendants file a Reply to Montgomery’s Dec. 10 opposition to their Dec. 8 motion to compel. See ECF 5.
Montgomery files a “Supplement” to his Dec. 10 opposition. See ECF 6.
Dec. 27, 2015
Montgomery v. Risen. Montgomery files
- Motion For Leave To File Excess Pages (for opposition to motion for summary judgment). See ECF 207.
- Agreed Motion for Extension of Time (to file opposition to motion for summary judgment). See ECF 208.
Dec. 28, 2015
Montgomery v. Risen. Defendants file
- Motion to Seal (the five questions referenced in Judge Goodman’s Dec. 8 order). See ECF 210.
Montgomery files Memorandum of Law in response to Magistrate Judge Goodman’s Dec. 8 order. See ECF 212.
Istvan Burgyan Discovery Proceedings (W.D.Wash). Risen Defendants file a Motion to Strike (Montgomery’s Dec. 24 “Supplement”) and/or Surreply. See ECF 8 (PDF) (Motion); ECF 7 (Notice of Intent to file Motion to Strike and/or Surreply); ECF 9 (Proposed Order).
Dec. 29, 2015
Montgomery v. S&S (SDNY). Following the scheduled teleconference (Transcript - ECF tbd), Judge Cote issues the following order:
"On December 29, 2015, a telephone conference was held in the above-captioned matter. After the conference, the Court again reviewed the materials that the defendants submitted for in camera review and has confirmed that the defendants redactions were appropriate. Laura Handman, counsel for all of the defendants in the underlying action in Florida, also appeared at the teleconference. She agreed to stipulate to the authenticity of the documents that the defendants produced in this matter. As discussed on the record at the teleconference, the plaintiff agreed to withdraw his application for depositions if there is such a stipulation. Accordingly, it is hereby ORDERED that the defendants are not required to produce unredacted versions of the documents to the plaintiff. IT IS FURTHER ORDERED that, since the defendants in the underlying Florida action will stipulate to the authenticity of the discovery produced in this action, depositions of the defendants in this action shall not take place. IT IS FURTHER ORDERED that the Clerk of Court shall close the case."
ECF 41.
------------------------------------------------------
Istvan Burgyan Discovery Proceedings (W.D.Wash). Montgomery files a response to Risen Defendants’ Dec. 24 Motion to Strike. See ECF 10 (PDF).
| « 2014 |
2016 »
|
Comments