197 F.Supp.3d 219
D.D.C.2016Background
- James Risen authored chapter about Dennis Montgomery in Pay Any Price (2014), alleging Montgomery sold the CIA and other agencies flawed or fabricated surveillance/"noise-filtering" and object-recognition software that led to serious government responses in 2003.
- Montgomery sued Risen and Houghton Mifflin for defamation, defamation by implication, defamation per se, and related torts; litigation transferred to D.D.C.; defendants moved for summary judgment.
- Central discovery dispute: defendants demanded production of Montgomery’s software (the subject of the Chapter). Montgomery turned hard drives over to the FBI and did not produce a working copy; magistrate ordered production and Montgomery objected.
- Defendants sought spoliation sanctions (including dismissal) for failure to preserve/produce the software; magistrate held hearings; district court denied sanctions but reserved decision until merits.
- On the merits, defendants argued many statements were non-actionable opinion/hyperbole, Montgomery could not establish falsity without the software or admissible proof, and Montgomery (a limited-purpose public figure) could not prove actual malice by clear and convincing evidence.
- Court granted summary judgment for defendants: many statements were opinion/non-actionable; Montgomery could not prove falsity (software unavailable/absent); and he failed to show actual malice. Related tort claims also dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relevance & production of software | Montgomery: software irrelevant because Risen never reviewed it and Chapter based on public sources | Defendants: software material to falsity and truth defenses; must be produced | Court: software is relevant to falsity; magistrate orders upheld; objections overruled |
| Spoliation sanctions for turning drives over to FBI | Montgomery: transfer incidental to criminal matter and/or drives contained classified material; no bad faith | Defendants: transfer (and failure to retain copy) prejudiced discovery and warranted dismissal/fees | Court: declined punitive spoliation sanctions (denied dismissal) but resolved merits against Montgomery, so practical relief achieved |
| Sufficiency of falsity evidence | Montgomery: need not show falsity for some claims or can rely on his testimony and other materials | Defendants: plaintiff must show falsity (or false implication); without software there is no admissible proof | Court: plaintiff cannot prove falsity or materially refute defendants’ sources; absence of software fatal to claims based on alleged nonworking tech |
| Opinion vs. provably false fact | Montgomery: many challenged phrases imply actionable assertions (e.g., "con man," "dangerous hoax") | Defendants: many passages are subjective, hyperbolic, or attributed to others and thus non-actionable | Court: large swath of statements are constitutionally protected opinion/hyperbole or attributed-source reporting and dismissed as non-actionable |
| Public-figure status & actual malice standard | Montgomery: contends private-figure treatment or that malice/ill will suffice | Defendants: Montgomery is a limited-purpose public figure; must prove actual malice by clear and convincing evidence | Court: Montgomery is a limited-purpose public figure; he failed to produce clear and convincing evidence of actual malice given multiple corroborating public and official sources |
| Remaining tort claims (IIED, tortious interference, assault) | Montgomery: these claims survive independent of defamation | Defendants: torts rest on alleged defamatory speech; if defamation fails, related torts fail | Court: because defamation claims fail, all related tort claims dismissed |
Key Cases Cited
- Masson v. New Yorker Magazine, 501 U.S. 496 (1991) (First Amendment limits libel law; minor inaccuracies don’t establish falsity if gist is true)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinion protection limited: statements implying provably false facts can be actionable)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (public officials/figures must prove actual malice for defamation)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (distinguishes public vs private figure standards; limited-purpose public figure doctrine)
- Hepps v. Philadelphia Newspapers, Inc., 475 U.S. 767 (1986) (plaintiff bears burden of proving falsity on matters of public concern)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard; proof quality needed to show actual malice at trial)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden-shifting principles)
- St. Amant v. Thompson, 390 U.S. 727 (1968) (actual malice requires subjective awareness of probable falsity)
- Lohrenz v. Donnelly, 350 F.3d 1272 (D.C. Cir. 2003) (actual malice requires showing defendant subjectively doubted truth: fabricated, inherently improbable, or based on unverified source)
- Waldbaum v. Fairchild Publications, 627 F.2d 1287 (D.C. Cir. 1980) (test for limited-purpose public-figure status)