197 F. Supp. 3d 219
D.D.C.2016Background
- James Risen authored Pay Any Price (2014); chapter about Dennis Montgomery asserted Montgomery sold the CIA and other agencies flawed "noise-filtering" and object-recognition software and described it as a hoax that prompted serious government reaction in 2003.
- Montgomery sued Risen and Houghton Mifflin for defamation and related torts in Florida; case transferred to D.D.C.; core dispute concerned whether Montgomery’s software worked and whether defendants knew or recklessly disregarded falsity.
- Defendants relied on prior media reports, FBI interview reports, court filings, and government statements (including John Brennan’s written testimony) as sources for the chapter; Risen also included Montgomery’s denials in the text.
- Defendants requested production of Montgomery’s software; Montgomery turned drives over to the FBI and did not produce the software in discovery, claiming (variously) it was classified or not in his possession.
- Magistrate judge ordered production; Montgomery objected; defendants moved for spoliation sanctions (including dismissal). The court resolved discovery disputes, denied spoliation sanction motion but reserved merits ruling.
- On summary judgment the court held many challenged statements were non-actionable opinion or hyperbole, Montgomery could not prove falsity because the software and evidence that it worked were absent, and Montgomery—found to be a limited-purpose public figure—failed to show actual malice by clear and convincing evidence. Judgment for defendants; related tort claims dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relevance & production of software | Montgomery: software irrelevant because Risen never reviewed it and claims about truth/falsity are immaterial to opinion; also claimed classification/non-possession | Defs: software is central to falsity inquiry; must be produced; turning it over to FBI without preserving copy obstructs discovery | Court: software is relevant to falsity and material; magistrate orders to produce were not clearly erroneous; objections overruled |
| Spoliation sanctions for giving drives to FBI | Montgomery: acted in good faith; FBI custody/possible classification excused nonproduction | Defs: transfer to FBI without notice spoliated key evidence; seek dismissal/fees | Court: Conduct troubling but did not find clear-and-convincing bad-faith destruction necessary for dismissal; denied sanctions but proceeded to grant summary judgment for defendants on merits |
| Falsity burden / truth defense | Montgomery: need not prove falsity for some claims; majority of chapter didn’t depend on software | Defs: falsity is required (esp. public-figure/public-concern); truth/ability of software central; absence of software prevents proof of falsity | Court: falsity is an element (or required defense to be tested); absence of software and supporting evidence defeats plaintiff’s ability to show statements about nonfunctionality were false; summary judgment for defendants on falsity ground |
| Opinion, hyperbole, and attribution to sources | Montgomery: many assertions implied factual allegations (e.g., "con man") and were defamatory | Defs: many statements are non-actionable opinion, rhetorical, or attributed to sources (fair report) | Court: numerous challenged statements are protected opinion/hyperbole or attributable to quoted sources; not actionable; where actionable, plaintiff failed to prove falsity/malice |
| Limited-purpose public figure / actual malice | Montgomery: argued public-figure status not applicable or malice shown by reliance on biased sources and omissions | Defs: Montgomery was a limited-purpose public figure; defendants relied on multiple corroborating reputable sources; no subjective awareness of probable falsity | Court: Montgomery is a limited-purpose public figure; required to prove actual malice by clear and convincing evidence and failed—record shows reliance on prior reporting, documents, government statements, and inclusion of Montgomery’s denials, so no actual malice |
Key Cases Cited
- Masson v. New Yorker Magazine, 501 U.S. 496 (1991) (First Amendment limits libel law; falsity and material changes are key).
- Garrison v. Louisiana, 379 U.S. 64 (1964) (constitutional limits on defamation sanctions in public-affairs speech).
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinion that implies no provably false fact is protected).
- Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) (plaintiff must show falsity when matter is of public concern).
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (public officials/public figures must prove actual malice).
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard; quantum/quality of proof required against constitutional standards).
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant’s initial burden on summary judgment).
- St. Amant v. Thompson, 390 U.S. 727 (1968) (actual malice requires subjective awareness of probable falsity).
- Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (clear-and-convincing standard in New York Times context).
- Lohrenz v. Donnelly, 350 F.3d 1272 (D.C. Cir. 2003) (actual malice requires subjective awareness of highly probable falsity; reliance on reputable sources accords protection).
- Waldbaum v. Fairchild Publications, 627 F.2d 1287 (D.C. Cir. 1980) (three-part test for limited-purpose public figure status).