875 F.3d 709
D.D.C.2017Background
- James Risen published a chapter in Pay Any Price describing Dennis Montgomery’s software as a fraud that fooled high-level U.S. officials and influenced national-security actions in 2003.
- Montgomery sued Risen and his publishers for defamation and related torts in 2015; the case was transferred to D.D.C.
- The district court ordered Montgomery to produce the subject software or equivalent evidence; Montgomery largely refused or failed to comply and provided only conclusory testimony.
- The district court granted summary judgment for defendants, finding Montgomery did not meet his burden to prove falsity for statements on matters of public concern and did not present evidence of actual malice.
- The D.C. Circuit affirmed, emphasizing Montgomery’s failure to produce or substantively describe the software (or other admissible evidence) and upholding the district court’s discovery and evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden to prove falsity for statements on matters of public concern | Montgomery contends Risen’s factual statements about the software’s nonexistence/dysfunction are false | Risen argues Montgomery failed to produce evidence to rebut those factual assertions | Court held Montgomery bore the burden of proving falsity and failed to do so; summary judgment affirmed |
| Production of software / discovery obligations | Montgomery claimed the software was irrelevant or classified and thus not producible | Risen and the court maintained the software was relevant and Montgomery could facilitate classified-review procedures or the FBI could assist | Court held the software was relevant and Montgomery failed to take available steps (FBI access, in-camera review, affidavits) to meet his burden |
| Status as limited-purpose public figure and actual malice requirement | Montgomery disputed or sought to avoid heightened First Amendment standards | Risen argued Montgomery was at least a limited-purpose public figure, requiring proof of actual malice | Court avoided resolving public-figure question because Montgomery failed on falsity; did not reach actual malice issue |
| Use of conclusory testimony vs. admissible evidence at summary judgment | Montgomery relied on his own conclusory statements and vague references to witnesses | Risen argued conclusory assertions cannot defeat summary judgment without specific admissible evidence | Court held conclusory testimony insufficient under summary judgment standards; plaintiff presented no admissible evidence creating a triable issue |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinion vs. provable false factual assertion guidance in defamation)
- Phila. Newspapers Inc. v. Hepps, 475 U.S. 767 (1986) (plaintiff must prove falsity for statements on matters of public concern)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (limited-purpose public-figure and actual malice framework)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burdens)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (materiality and genuine dispute standards at summary judgment)
- Ricci v. DeStefano, 557 U.S. 557 (2009) (reasonable-jury standard for genuine disputes)
- Johnson v. Perez, 823 F.3d 701 (D.C. Cir. 2016) (party affidavit can create a factual dispute if detailed and competent)
- Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999) (conclusory assertions insufficient to defeat summary judgment)
- Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381 (D.C. Cir. 1979) (in-camera review procedures for classified materials)