Montgomery v. RisenMontgomery v. Risen
- Reporters:
- ,
- Before:
- Rudolph Contreras
MEMORANDUM OPINION
RESOLVING ALL PENDING MOTIONS AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
The twists and turns of this case could fill the pages of a book. In fact, much of it already has. In October 2014 Defendant James Risen authored, and his co-defendants
anticipated al Qaeda terrorist attacks. If this sounds too good to be true, you are not alone. The relevant chapter in Pay Any Price explains how government officials, Montgomery‘s former employees, and others came to believe that his technology did not work as billed. The chapter repeats others’ assertions that Montgomery is a con man and describes his technology as a hoax.
This memorandum opinion is an extended epilogue of sorts, and picks up where Pay Any Price leaves off. Montgomery filed this action claiming, primarily, that Defendants defamed him in the chapter and in the course of promoting the book. After a protracted, and largely unresolved, saga in the United States District Court for the Southern District of Florida, the case was transferred to this district and assigned to the undersigned. Before the Court are Defendants’ motion to dismiss and motion for summary judgment and a number of outstanding discovery related motions. The tale of the Court‘s resolution of those motions follows. For those not otherwise tempted to skip to the final chapter—spoiler alert—the end result is that the Court will grant Defendants’ motion for summary judgment.
II. FACTUAL & PROCEDURAL BACKGROUND
A. The Challenged Chapter
Defendant James Risen is the author of Pay Any Price: Greed, Power, and Endless War, which was published on October 14, 2014 by Houghton Mifflin. See Defs.’ Stmt. of Undisputed Material Facts ¶¶ 1, 3 (“Defs.’ SUMF“), ECF No. 202. The nine-chapter book “describes how the war on terror led to waste, fraud, and abuse by U.S. government officials and the contractors who stood to gain from it.” Id. ¶ 5. Chapter two of the book (“the Chapter“), entitled “The Emperor of the War on Terror,” claims that in the post-September 11th era government officials were quick to fund potential counterterrorism efforts. The Chapter posits that, as Congress “thr[ew] cash at the FBI, CIA, and Pentagon,” a “counterterrorism bubble, like a financial bubble grew in Washington, and a new breed of entrepreneur learned that one of the surest and easiest paths to riches could be found . . . in Tysons Corner, Virginia, coming up with new ways to predict, analyze, and prevent terrorist attacks—or, short of that, at least convincing a few government bureaucrats that you had some magic formula for doing so.” Am. Compl. Ex. A at 31 (“Chapter“), ECF No. 44.2
The Chapter focuses on several types of technology that Montgomery developed. The Central Intelligence Agency (“CIA“) and other federal intelligence and law enforcement agencies apparently relied on the technology beginning in or around 2003. Id. at 37. The Chapter claims that the technology did not work as billed. For example, Montgomery allegedly created video compression and object recognition technology which the Air Force and other agencies believed could be helpful in storing and analyzing Predator drone video. Id. at 36. In particular, the Chapter states that “Montgomery claimed that his facial recognition software was so good that he could identify individual faces from the video camera flying on a Predator high above the mountains of southern Afghanistan.” Id. at 37. By 2003, the U.S. Special Operations Command and the Air Force had awarded government contracts related to the technology to eTreppid Technologies, the company Montgomery founded along with his financial backer, Warren Trepp. Id. at 34–35, 37.
The Chapter claims that while Montgomery performed field tests of the object recognition technology for Pentagon officials, former employees now allege that those tests were fabricated. Specifically, the Chapter reports one occasion on which Montgomery attempted to show that his technology could detect, from a great distance, a toy bazooka Montgomery carried in a field outside eTreppid. Id. at 37. According to the Chapter, Warren Trepp informed the Federal Bureau of Investigation (“FBI“) that “Montgomery told two eTreppid employees to go to an empty office and push a button on a computer when they heard a beep on a cell phone.” Id. While carrying the bazooka, Montgomery purportedly “used a hidden cell phone to buzz the cell phone of one of the eTreppid employees, who then pushed a key on a computer keyboard, which in turn flashed an image of a bazooka on another screen prominently displayed in front of the military officers standing in another room.” Id. This course of events “convinced” the military officials “that Montgomery‘s computer software had amazingly detected and recognized the bazooka in Montgomery‘s hands.” Id.
The technology most emphasized in the Chapter, however, is technology Montgomery claimed he had developed “enable[ing] him to decipher al Qaeda codes embedded in the network banner displayed on the broadcasts of Al Jazeera, the Qatar-based news network.” Id. at 40. This software is often referred to as the “noise filtering” software. See, e.g., Decl. of James Risen ¶ 15 (“Risen Decl.“), ECF No. 203; id. Ex. 11 at 2, ECF No. 203-11. Risen writes that “Montgomery sold the CIA on the fantasy that al Qaeda was using the broadcasts to digitally transmit its plans for future terrorist attacks“—which included “series of
The Chapter posits that “Montgomery brilliantly played on the CIA‘s technical insecurities as well as the agency‘s woeful lack of understanding about al Qaeda and Islamic terrorism.” Id. Although noting that “Montgomery insists that he did not come up with the idea of analyzing Al Jazeera videotapes,” and that the CIA instead came to him, Risen writes that “even if it wasn‘t Montgomery‘s idea, he ran with it as fast as he could.” Id. at 41. Montgomery allegedly informed the CIA that the Al Jazeera broadcasts had hidden letters and numbers embedded in them, which “included the letters ‘AF’ followed by a series of numbers, or the letters ‘AA’ and ‘UA’ and two or three digits.” Id. Other series of numbers “looked like coordinates for the longitude and latitude of specific locations.” Id.
The Chapter states that “[t]he CIA made the inevitable connections,” and Risen contends in the Chapter that the technology “so enraptured certain key government officials that it was considered the most important and most sensitive counterterrorism intelligence that the Central Intelligence Agency had to offer President Bush.” Id. at 41, 39. Senior CIA officials in the agency‘s Directorate of Science and Technology began to vouch for Montgomery‘s work. Id. at 39. The Chapter reports that the Directorate‘s chief, Donald Kerr, believed the claims about the embedded codes, and convinced George Tenet, Director of the CIA, to take the information seriously. Id. at 42. “As a result, in December 2003, Tenet rushed directly to President Bush when information provided by Montgomery and his software purported to show that a series of flights from France, Britain, and Mexico to the United States around Christmas were being targeted by al Qaeda.” Id. President Bush ordered those flights grounded. Id. The Chapter also recounts that “[o]ne former senior CIA official recalled attending a White House meeting in the week following Christmas to discuss what to do next about the information coming from Montgomery,” a conversation that included a “brief but serious discussion about whether to shoot down commercial airliners over the Atlantic based on the intelligence.” Id. at 45.
Eventually, French officials apparently demanded answers from the United States, and the CIA “was finally forced to reveal to French intelligence the source of the threat information.” Id. at 46. French officials arranged for a French technology firm to “reverse-engineer” the technology. Id. The firm concluded that the broadcasts contained too few pixels to contain hidden bar codes or unseen numbers. Id. While the Chapter reports Montgomery‘s claim that “CIA officials continued to work with him for months after Christmas 2003, and that CIA personnel were still showing up at his offices in Nevada until late 2004,” Risen writes that once the CIA came to terms with the French findings, the agency “tried to forget all about him.” Id. Risen claims that “the CIA never investigated the apparent hoax nor examined how it had been handled inside the agency.” Id.
Given this course of events, the Chapter describes Montgomery as “the maestro behind what many current and former U.S. officials and others familiar with the case now believe was one of the most elaborate and dangerous hoaxes in American history, a ruse that was so successful that it nearly convinced the Bush administration to order fighter jets to start shooting down commercial airliners filled with passengers over the Atlantic.” Id. at 32; see also id. at
The Chapter also describes the apparent aftermath. Beginning in 2005, Trepp and Montgomery became embroiled in a series of personal and legal disputes. Montgomery claimed Trepp had not adequately provided him with a share of the money flowing from eTreppid‘s government contracts. See id. at 49. Montgomery allegedly absconded with his technology‘s source code, and deleted the code and data from eTreppid‘s computer files, which prompted an FBI investigation and a lawsuit between the two. Id. It was during that investigation that many of the allegations concerning Montgomery‘s software came to light. Id. at 49–50. Montgomery also made several high-profile allegations that former-Nevada Congressman Jim Gibbons, who had recently been elected as Nevada‘s governor, accepted bribes from Trepp in exchange for assisting eTreppid secure defense contracts. Id. at 49. Those allegations led to a federal corruption investigation, which eventually cleared Gibbons of any wrongdoing. Id. at 49–50. Finally, the Chapter detailed Montgomery‘s work with a subsequent backer, Edra Blixseth, with whom Montgomery attempted to secure additional government contracts for his noise filtering and object recognition technologies through a company they created called Blxware. Id. at 50–51. These efforts led to a meeting with an aide of Vice President Dick Cheney and efforts to convince the Israeli government to use his technology. Id. at 51. Neither proved successful. Id. In part based on these and other events, and drawing from court documents and FBI investigation reports, the Chapter explains that Trepp came to believe Montgomery‘s work was not what he claimed it was, id. at 49, and that Montgomery‘s former lawyer, Michael Flynn, “concluded that Montgomery was a fraud,” id. at 36.
The Chapter also published Montgomery‘s counter-statements, albeit with somewhat less emphasis. In its opening pages, Risen states that “Montgomery strongly denies that he peddled fraudulent technology” and that Montgomery “insists that the charges have been leveled by critics with axes to grind, including his former lawyer and former employees.” Id. at 33. Risen also reports that Montgomery claims he “was following direct orders from both the NSA and the CIA, and says that the CIA, NSA, and U.S. military took his technology so seriously that it was used to help in the targeting of Predator [drone] strikes and other raids.” Id. Specifically, “Montgomery insists that he did not come up with the idea of analyzing Al Jazeera videotapes” and “says that the CIA came to him in late 2003 and asked him to do it.” Id. at 41. Montgomery claims that “[t]he fact that the government is blocking public disclosure of the details of its relationship with him . . . shows that his work was considered serious and important.” Id. at 33–34. The Chapter also
In reporting this episode, the Chapter also relies in several instances upon FBI investigation reports, depositions and affidavits filed in various lawsuits, Congressional testimony, and other information in the public domain. For example, the Chapter identifies court documents, which contained Warren Trepp‘s statements to the FBI, as the Chapter‘s source of the information regarding Montgomery‘s purportedly fabricated tests of his object identification software. See id. at 37 (“Warren Trepp later told the FBI that he eventually learned that Montgomery had no real computer software programming skills, according to court documents that include his statements to the FBI.“); id. (“Trepp also described to federal investigators how eTreppid employees had confided to him that Montgomery had asked them to help him falsify tests of his object recognition software when Pentagon officials came to visit.“); id. (describing the fabricated tests, and the use of Montgomery‘s hidden cell phone, “according to court documents“). The Chapter also relies on John Brennan‘s testimony before the Senate Intelligence Committee during Brennan‘s confirmation as CIA Director in 2013. Id. at 47. In 2003, Brennan had been head of the Terrorist Threat Integration Center, which was responsible for distributing intelligence throughout the United States government. Id. When asked in a written questionnaire about Montgomery‘s technology, Brennan wrote that the technology “was determined not to be a source of accurate information.” Id.; see also Risen Decl. Ex. 19 at 10.
B. Prior Media Coverage
Media coverage concerning Montgomery‘s purportedly fabricated technology, specifically, and discussing Montgomery, more generally, predated publication of Pay Any Price by nearly a decade.
On June 27, 2005, NBC News published an article authored by Lisa Myers and Aram Roston discussing the 2003 grounding of several flights. The article reported that “senior U.S. officials now tell NBC News that the key piece of information that triggered the holiday alert was a bizarre CIA analysis, which turned out to be all wrong,” although the article did not name Montgomery as the source of the technology. Risen Decl. Ex. 4. The article reported that CIA officials believed that they had found secret messages in the crawl bar of Al Jazeera news broadcasts, and quoted Tom Ridge, who had been the Secretary of the Department of Homeland Security in 2003. Secretary Ridge “confirm[ed] there were no secret terror messages,” but maintained it was not a mistake to raise the threat level, and acknowledged that the analysis was not the only factor in raising the threat level. Id.
In the interim, the Jim Gibbons bribery allegations broke. Media reports indicated that the allegations’ source was sworn testimony Dennis Montgomery provided in the context of his lawsuit with Trepp concerning the rights to his software code. See, e.g., Risen Decl. Ex. 5 at 3. Montgomery‘s allegations led to a series of articles in the media, and culminated in Dennis Montgomery sitting down for an interview with Lisa Myers of NBC news to discuss his allegations. Id. Ex. 6, Ex. 7 (transcript of NBC news interview). During the course of Montgomery and Trepp‘s legal battle, documents concerning eTreppid and Montgomery‘s software were unsealed
The focus eventually shifted to Montgomery‘s software. Aram Roston, who had written the 2005 story for NBC News with Lisa Myers, wrote a much more expansive article on the Montgomery saga in 2010 for Playboy Magazine, entitled “The Man Who Conned the Pentagon.” See Risen Decl. Ex. 11. The article states that Montgomery “apparently convinced the Bush White House, the CIA, the Air Force, and other agencies that Al Jazeera—the Qatari-owned TV network—was unwittingly transmitting target data to Al Qaeda sleepers.” Id. at 2. And in 2011 Risen and Eric Lichtblau wrote an article for the New York Times canvassing much of the same information. The article, entitled “Hiding Details of Dubious Deal, U.S. Invokes National Security,” was published on February 19, 2011. See id. Ex. 3. The article explained that the Department of Justice had secured protective orders in two cases to shield details of Montgomery‘s technology from the public. Id. The article canvassed many of the allegations that would be repeated in the Chapter, including that Montgomery‘s technology appeared to be a hoax, that Montgomery‘s former lawyer now viewed him as a “con man,” that former employees believed Montgomery had fabricated demonstrations of his technology for government officials, and that Montgomery‘s technology prompted President Bush to ground several airliners. See id. at 1–3. The article also stated that “[s]enior administration officials even talked about shooting down planes identified as targets . . . , according to a former senior intelligence official who was at a meeting where the idea was discussed.” Id. at 4.
Risen claims that, in writing his book, he relied on these articles and other media coverage. See Risen Decl. ¶¶ 7–18; see also id. Exs. 13, 14. In a footnote of the Chapter, Risen explicitly acknowledges both Aram Roston‘s Playboy article, and Risen‘s own New York Times article. See Chapter at 53. None of the articles have ever been retracted.
C. Procedural History
On February 24, 2015, following publication of Pay Any Price, Montgomery filed this action in the Southern District of Florida. See generally Compl., ECF No. 1. The operative, Amended Complaint asserts a multitude of claims for defamation, defamation per se, and defamation by implication based on forty-three allegedly defamatory statements. See Am. Compl. ¶¶ 96–239, ECF No. 44. The Amended Complaint also alleges additional claims of intentional infliction of emotional distress, tortious interference with prospective advantage, and assault. See id. ¶¶ 240–256. The allegedly defamatory statements include statements made in the Chapter, see, e.g., id. ¶¶ 106, 109, 111, as well as statements Risen made in interviews when promoting the book, see, e.g., id. ¶¶ 139–141, 145, 149. The latter statements, in many respects, repeat allegations made in the Chapter or the Chapter‘s characterization of Montgomery. Compare, e.g., id. ¶ 149 (asserting in interview that “when they [the CIA] realized it was a hoax, they covered the whole thing up and never did anything about it“), with Chapter at 32 (“Once it was over, once the
On April 9, 2015, Defendants filed a motion to dismiss or transfer for lack of personal jurisdiction. See Defs.’ Mot. to Dismiss or Transfer at 12–17, ECF No. 25. In the alternative, Defendants also moved to transfer for improper venue under
Shortly after filing his complaint, Montgomery also raised issues concerning his poor health, and sought to expedite consideration of his claims. See, e.g., Emergency Pl.‘s Mot. for Status Conf., ECF No. 9. The Court set an initial discovery deadline of September 16, 2015, with trial slated to begin on November 30, 2015. See Order Setting Civil Trial Date & Pretrial Schedule, ECF No. 48. Defendants argued that no discovery should occur before their initial motions were resolved, and filed a formal motion to stay discovery pending resolution of Defendants’ motion to dismiss on May 19, 2015. See Defs.’ Mot. to Stay Disc. Pending Resolution of Mots. to Dismiss, ECF No. 55; Pl.‘s Opp‘n to Defs.’ Mot. to Stay Disc., ECF No. 68. On September 10, 2015—nearly four months later, and after most of the discovery period had already run—the district court summarily denied that motion. See Paperless Order, ECF No. 130. On that same day, the Court also granted in part and denied in part Defendants’ motion to modify the scheduling order. The Court rescheduled trial for March 21, 2016, and extended discovery until November 19, 2015. See Paperless Order, ECF No. 131.
Several discovery disputes arose throughout this period, and were considered by Magistrate Judge Jonathan Goodman. Of most relevance to the merits of Montgomery‘s claims is Defendants’ request that Montgomery produce the software that is the subject of the Chapter. As explained in more detail below, after initially objecting to that request, Montgomery eventually claimed that he had turned over the only copy of his software to the FBI, along with a large volume of other computer drives and electronic information, in connection with an unrelated criminal investigation. Magistrate Judge Goodman
In the interim, discovery closed (although Montgomery filed a motion to extend that deadline, which also remains pending). See Paperless Order, ECF No. 131; see also Pl.‘s Mot. for Extension of Time to Reset Disc. Deadline, ECF No. 181. On December 14, 2015, consistent with the deadline set by the district court, and even though their motion to dismiss or transfer remained pending, Defendants filed a motion for summary judgment.5 See Paperless Order, ECF No. 131; Defs.’ Mot. for Summ. J. & Mem. Supp. (“Defs.’ Mem. Supp. Summ. J.“), ECF No. 201.
On January 25, 2016, the district court ruled in part on Defendants’ motion to dismiss or transfer. In a four-page order, the district court granted in part Defendants’ motion to dismiss or transfer, concluding that the convenience of the parties and the interests of justice warranted transfer under
This action was transferred to this district, and randomly assigned to the undersigned. Since transfer, the parties have completed briefing Defendants’ motion for summary judgment. That motion—which the Court concludes subsumes the pending motion to dismiss—is now ripe for determination along with all of the other, outstanding motions.7 After review of the
III. ANALYSIS
The Court will first resolve the outstanding discovery issues before turning to Defendants’ motion for summary judgment.
A. A Note Concerning Choice of Law
At the outset, the Court clarifies the substantive law it will apply in this case. As will become clear, the question is relevant to both the summary judgment motion and the outstanding discovery disputes, because Montgomery claims that the software is wholly irrelevant to this action.
“[T]here is no federal cause of action for defamation,” Bartel v. FAA, 725 F.2d 1403, 1405 n.2 (D.C. Cir. 1984), and Montgomery‘s substantive claims depend on the application of state law. Montgomery‘s Amended Complaint repeatedly invokes Florida law. See, e.g., Am. Compl. ¶¶ 103–05, 173. In their motion to dismiss, Defendants briefly asserted that District of Columbia law, and not Florida law, would most likely apply to this case, and they provided a more lengthy argument for applying D.C. law in the context of their motion to dismiss under various states’ applicable anti-SLAPP statutes. See Defs.’ Mot. to Dismiss at 26, ECF No. 52; Defs.’ Renewed Special Mot. to Dismiss under the Applicable Anti-SLAPP Statute at 2–5, ECF No. 53. In his opposition to Defendants’ motion to dismiss, Montgomery argued that Florida law applies. See Pl.‘s Mem. in Opp‘n to Defs.’ Mot. to Dismiss at 24–29, ECF No. 63. Defendants’ motion for summary judgment discusses the issue only in a passing footnote, however, see Defs.’ Mem. Supp. Summ. J. at 16 n.6, and Montgomery‘s opposition fails to discuss the choice of law issue at all. See generally Pl.‘s Opp‘n to Defs.’ Mot. for Summ. J. (“Pl.‘s Opp‘n“), ECF No. 233. Finally, Defendants’ reply in support of their motion for summary judgment asserts in a passing footnote that “[n]ow that the case has been transferred to the District of Columbia, D.C. law clearly applies.” Defs.’ Reply at 7 n.4, ECF No. 250. Yet, the district court‘s order did not resolve, let alone discuss, which jurisdiction‘s substantive law was most likely to apply to this action. Instead, its decision to transfer venue was grounded on other considerations.
In sum, the issue remained unresolved upon transfer, and the parties have not adequately briefed the issue in the context of Defendants’ motion for summary judgment. Nevertheless, the Court believes that the question is immaterial. All but one of Defendants’ arguments for
U.S. 496, 510 (1991) (explaining that “[t]he First Amendment limits California‘s libel law in various respects“); Garrison v. Louisiana, 379 U.S. 64, 67 (1964) (explaining that “the Constitution limits state power” in defamation cases). For example, a plaintiff‘s inability to assert defamation based on a statement of opinion, a plaintiff‘s burden to demonstrate falsity (at least in circumstances like these), and the requirement that a limited-purpose public figure show actual malice, each emanate from the Constitution. See, e.g., Masson, 501 U.S. at 510; Milkovich v. Lorain Journal Co., 497 U.S. 1, 20–21 (1990); Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). These limitations apply with equal force to causes of action arising under D.C. as well as Florida law, and the Court has found no meaningful difference among those jurisdictions’ law in faithfully applying those principles. Indeed, Defendants assert that the jurisdictions’ law are the same on the issues relevant to their motion, and Montgomery‘s opposition does not claim otherwise. See Defs.’ Mem. Supp. Summ. J. at 16 n.6. As a result, the Court cites to both D.C. and Florida cases as appropriate. Ultimately, the Court‘s holdings are the same regardless of whether D.C. or Florida law applies.
B. Outstanding Discovery Issues
As the Court‘s description of this case‘s procedural history makes clear, several discovery issues remain outstanding. Most of the motions involve the software that is at the center of the Chapter‘s claims. Montgomery had filed several objections to the magistrate judge‘s orders that he produce that software, and has moved to extend the discovery deadline to allow the search for the software to continue. Defendants have filed a motion for spoliation sanctions based on Montgomery‘s failure to provide the software. Before proceeding to consider Defendants’ motion for summary judgment, the Court must resolve these motions.
1. Background
Some background regarding this dispute is necessary to understand the parties’ motions and the Court‘s ultimate ruling. In their first set of production requests, Defendants requested that Montgomery produce his software. See Defs.’ First Set of Interrogs. & First Set of Requests for Prod. of Docs. to Pl. at 12, ECF No. 90-1 at 13 (request number eight). In response to that request, Montgomery asserted a blanket objection “to any interrogatories or document request regarding a copy of his software,” on grounds of “confidentiality, intellectual property rights, legal restrictions on the Plaintiff responding, that the individual document request by its nature is unreasonably burdensome and oppressive, that the total number of document requests is unreasonably burdensome, oppressive and harassing, and also on the grounds that the request is neither relevant nor reasonably calculated to lead to admissible evidence.” Pl.‘s Resps. to Defs.’ First Set of Doc. Reqs. to Pl. at 7, ECF No. 90-2 at 34. Based on those grounds “and other considerations,” Montgomery asserted that he “[would] not produce a copy of any software.” Id. Notably, Montgomery
Defendants eventually noted a discovery dispute with the court, and Magistrate Judge Goodman scheduled a hearing for August 21, 2015. In their papers, Defendants cited and reproduced a Nevada federal district court‘s orders from Montgomery‘s lawsuit against eTreppid in which the software had been excluded from a government-endorsed Protective Order. In that case, Montgomery had been ordered to produce, and then held in contempt for not producing, his software. See Defs.’ Pre-Hearing Mem. at 2–3, ECF No. 94; id. Exs. 2–6. On August 19, two days prior to the discovery hearing before Magistrate Judge Goodman, Montgomery apparently turned over what he would later claim is his only copy of the software to the FBI, along with a large volume of other computer drives and electronic information, in connection with an unrelated criminal investigation.9 At his deposition, which was held on August 20, he confirmed this series of events. See Montgomery Dep. at 127:12–133:19, ECF No. 166-2. And at the motion hearing the next day, Montgomery‘s counsel, Mr. Klayman, represented to the court that the software had been turned over to the FBI. See, e.g., Tr. of Disc. Hr‘g at 6:25–7:10, ECF No. 110. Mr. Klayman also conceded that Defense counsel was not given advanced warning of the transfer, but he did represent that Montgomery had arranged to have “continuing access to documentation which is not classified.” Id. at 16:21–17:4.
Following the hearing, Magistrate Judge Goodman ordered Montgomery to “use his self-described right of continued access to non-classified information . . . and produce the software to Defendants” by September 4, and to advise FBI General Counsel James Baker and Assistant U.S. Attorney Deborah Curtis of the order. Post-Disc. Hr‘g Order at 2–3, ECF No. 107. Montgomery moved to stay that order pending resolution of his objection to the order before the district court, but Magistrate Judge Goodman denied that motion. See Pl.‘s Mot. to Stay
Implementation of Para. 5 of Magistrate’s Order of Aug. 22, 2015, ECF No. 112; Order Den. Pl.’s Mot. to Stay One Para. of Disc. Order, ECF No. 122.
Montgomery failed to produce the software, and instead filed an objection to the magistrate judge’s order, which remains pending. See Pl.’s Obj. to Portions of Magistrate Judge’s Order of Aug. 22, 2015,
On September 8, 2015, James Baker, the FBI’s General Counsel, responded by letter, disputing Mr. Klayman’s representations concerning Montgomery’s continued access to the software and stating that Montgomery “did not associate potential retrieval of this information [certain personal information] with any pending civil litigation.” Letter from James A. Baker, Gen. Counsel, FBI, to Larry Klayman (Sept. 8, 2015), ECF No. 126. Mr. Baker also wrote that the government “resolved to treat the materials under review as presumptively classified for security purposes,” and “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.” Id. Nevertheless, the government stated that it would be “prepared to facilitate Mr. Montgomery’s reasonable access to unclassified information resident on the drives” but noted the burden that the government would undertake if it were to search for the software, without specific instructions, among the 51.6 million files and 600 million pages of documents Montgomery represented were contained on the hard drives. Id. As a result, the government requested that Montgomery provide several pieces of information necessary to identify the software, and said that if the software was located “appropriate U.S. Government agencies and/or departments will conduct a classification review of the software.” Id. Mr. Klayman and his paralegal thereafter filed declarations reiterating that they did inform the government that Montgomery was involved in civil litigation and that Defendants had asked for access to the software. See Notice of Filing of Decls., ECF No. 127.
Magistrate Judge Goodman held a second hearing on October 16, 2015. At that hearing, Mr. Klayman argued that he was not certain whether the software was in fact contained among the materials turned over to the FBI. Tr. of Disc. Hr’g at 10:17–22, ECF No. 163. He also claimed that he did not know whether or not the software was classified. Id. at 15:20–16:9. Following the hearing, Magistrate Judge Goodman ordered Montgomery to turn over to the FBI a comprehensive set of instructions as to how to pinpoint the software, and to produce the software to the Defendants by October 26, 2015. He also instructed Montgomery to produce all of his correspondence with the FBI up until that point. See Post-Disc. Hr’g Admin. Order, ECF No. 154.
On October 21, Montgomery then filed an affidavit contending, for the first time, that “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 [FBI] when I turned over the drives.” Montgomery Decl., ECF No. 158-1. Nevertheless, he claimed that he would provide additional information to the FBI that would enable the agency to locate the software, if it existed, on his drives.
On October 23, in an e-mail to Mr. Klayman, FBI Assistant General Counsel Ted Schwartz informed Mr. Klayman that Montgomery had not provided the information the agency requested in its September 8, 2015 letter. See E-mail from Ted Schwartz, Assistant Gen. Counsel, FBI, to Larry Klayman (Oct. 23, 2015, 3:44 PM), ECF No. 166-4. Mr. Schwartz also pointed
On October 26, 2015, Montgomery filed another objection to Magistrate Judge Goodman’s most recent order that he produce the software, claiming that he had made a good faith effort to facilitate the search of the software. See Pl.’s Obj. to Magistrate Judge’s Order of Oct. 19, 2015 & Req. Stay, ECF No. 164. Despite Mr. Schwartz’s October 23 representation to the contrary, Montgomery claimed that the “FBI is working with due speed to search through the millions of files in order to determine whether such software does exist in the documents provided by Plaintiff,” and again reiterated his contentions that the software was not relevant and that Defendants had failed to properly designate an expert to analyze it. Id. at 6, 10–11. Shortly thereafter, Defendants filed a motion for spoliation sanctions, arguing that Montgomery had spoliated the software by providing his only copy to the FBI. See Defs.’ Mem. Supp. Mot. for Sanctions, ECF No. 166. Defendants sought dismissal of the case and attorneys’ fees. See id. at 1.
On December 11, 2015, Mr. Schwartz informed Mr. Klayman, by e-mail, that because Mr. Montgomery had not provided the necessary information and no longer believed that the FBI was in possession of the software, the agency’s October 23 position—that they would not search for the software—remained unchanged.10 See E-mail from Ted Schwartz, Assistant Gen. Counsel, FBI, to Larry Klayman (Dec. 11, 2015, 10:43 PM), ECF No. 196-1.
Nevertheless, Mr. Klayman represented at the January 5, 2016 sanctions hearing that officials on the “criminal side” of the FBI continue to search for the software, at least incidentally. He argued that Mr. Schwartz and those on the “civil side” of the FBI were not involved in that process. He claimed that they were searching everything on Montgomery’s drives as part of the criminal investigation and that Mr. Klayman continued to advise them to keep the software relevant to this litigation in mind. See Sanctions Hr’g Tr. at 54:4–58:15.11
2. Montgomery’s Objections to the Magistrate Judge’s Orders
With this history in mind, the Court overrules Montgomery’s objections to Magistrate Judge Goodman’s orders. A district court will only set aside a magistrate judge’s order with respect to a non-dispositive matter, like a discovery order, if the order “is clearly erroneous or is contrary to law.”
Most importantly, although Montgomery claims that the software is irrelevant, he is wrong. In making that argument, Montgomery has conflated the distinct inquires for actual malice and falsity. See 3 Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 23:6 (2016) (“Wholly aside from the fault requirements that have been engrafted upon modern defamation law by the First Amendment, the First Amendment does not permit liability for defamation unless the plaintiff also demonstrates that the defamatory statement was a false statement of fact.” (second emphasis added)). Actual malice focuses on the subjective state of mind of the defendant. Falsity, by contrast, focuses on the objective truth of the defendant’s assertions. Therefore, it does not matter “if the defendant doesn’t know the truth of the matter when he makes the defamatory statement”; “[s]o long as what he says turns out to be true, he is free from liability.” Bustos v. A&E Television Networks, 646 F.3d 762, 764 (10th Cir. 2011). “[T]ruth, whenever discovered, serves as a complete defense.” Id.
Montgomery cites three reasons why the software is irrelevant. First, he repeatedly emphasizes that Defendants did not raise the defense of truth as a ground for dismissal in their motion to dismiss. See, e.g., Pl.’s Obj. to Portions of Magistrate Judge’s Order of Aug. 22, 2015 at 3–6. That omission has no bearing, however. Defendants do not have an obligation to raise every anticipated defense in a motion to dismiss.12 They did not waive a potential evidence- or merits-based defense of falsity by failing to raise it in their motion to dismiss. Indeed, falsity is the sort of defense that one might think, in many cases, depends on examination of factual evidence. For example, it might have been difficult to argue at the motion to dismiss stage that Montgomery’s allegation the software worked was implausible. Once armed with evidence at the summary judgment stage, though, it is possible to argue, as Defendants do now, that the evidence does not support that allegation. Nor is Montgomery’s repeated assertion that Risen never reviewed the software or other governmental materials either relevant or well-taken. See, e.g., id. at 6. Regardless of what Risen subjectively believed or relied on to form that belief, Montgomery still has the basic burden to show that the Chapter’s assertions were false.
Second, Montgomery contends that the software is irrelevant because he can succeed on a defamation claim solely by showing actual malice or ill will. See, e.g., Sanctions Hr’g Tr. at 22:25–26:15; see also Pl.’s Opp’n at 22–23. As a matter of law, he is wrong. “[W]here discussion of public affairs is concerned,” the “truth may not be the subject of either civil or criminal sanctions,” Garrison, 379 U.S. at 74, and the plaintiff must “show the falsity of the statements at issue to prevail in a suit for defamation,” Phila. Newspapers, Inc., 475 U.S. at 775. This is particularly so when the plaintiff is a public figure, the issue concerns public affairs, or the plaintiff must show actual malice. In direct contradiction to Montgomery’s argument, the Supreme Court
The handful of cases Montgomery cites are not to the contrary. See Pl.’s List of Auth. Pursuant to Order of Jan. 6, 2016, ECF No. 226. He cites two cases describing the Florida Constitution which could be read, when taken out of context, to permit a plaintiff to succeed on a defamation claim based on a true statement. The Florida Constitution provides, in relevant part, that “[i]f the matter charged as defamatory is true and was published with good motives, the [defendant] shall be acquitted or exonerated.”
To be sure, a few cases interpreting Florida law—including the two that Montgomery cites—continue to recite that truth is not a complete defense to defamation unless accompanied by a good motive. As other Florida decisions note, these cases “create confusion,” Cape Publ’ns, 840 So. 2d at 279 n.2, particularly when presented as a broad principle and not cabined to their proper context. For example, one case cites the relevant Florida constitutional provision in a footnote but expressly clarifies that whether truthful defamation is actionable “depend[s] upon whether a ‘public interest’ is involved.” Lewis v. Evans, 406 So. 2d 489, 492 (Fla. Dist. Ct. App. 1981). In the other case, Finch v. City of Vernon, the Eleventh Circuit briefly noted that the Florida Constitution permits liability in defamation for a statement, even if true, that was made “with ill will.” See 877 F.2d 1497, 1504 (11th Cir. 1989). But, the discussion is dicta and the court’s analysis was limited. The court was resolving a defendant’s argument that the district court had erred in denying the admission of character evidence to prove the truth of the defendant’s statements. Id. The court first noted that the defendant had not identified what evidence he would have introduced, and thus the court was unable to determine “whether the district court abused its discretion in excluding it.” Id. In the alternative, the court merely stated, without analysis, that because publication of a true statement with ill will can be defamatory, and the defendant did not argue the evidence was insufficient to show ill will, his argument would not have prevailed in any event. Id. Neither of these cases support Montgomery’s broad proposition.
And the other cited cases involve claims that a defamatory impression could be inferred from true statements. So-called defamation by implication, as the Florida Supreme Court has recognized, has “a longstanding history in defamation law.” Jews For Jesus, 997 So. 2d at 1106. Even in such cases, though, courts focus not on whether an injury arises from the true statements themselves, but rather on the “false impression given by the juxtaposition or omission of facts.” See id. at 1108 n.13 (emphasis added). Accordingly, “truth remains an available defense,” and all of the “protections [that] defamation law . . . afford[s] to the media . . . extend[] to the tort of defamation by implication.” Id. at 1108 & n.13.14
As the Court explains below, Montgomery is a limited-purpose public figure and the Chapter’s statements are undoubtedly of public concern. See infra Part III.C.4.a. Thus, falsity is an element Montgomery must establish in order to succeed on his defamation claims, and evidence demonstrating falsity is of critical relevance. At the same time, the issue would be no less relevant even if Montgomery anticipated that a court would conclude he is merely a private individual (and if Defendants were found to be non-media defendants). In those circumstances, at least under Florida law, truth operates as a defense to a plaintiff’s claim, rather than an element the plaintiff must prove. See, e.g., In re Standard Jury Instructions in Civil Cases-Report No. 09-01 (Reorganization of the Civil Jury Instructions), 35 So. 3d 666, 729–30 (Fla. 2010). But see Hepps, 475 U.S. at 776 (holding that, in a case where a “private figure” brings a defamation claim based on a matter “of public concern,” the “common law’s rule on falsity—that the defendant must bear the burden of proving truth—must . . . fall . . . to a constitutional requirement that the plaintiff bear the burden of showing falsity” (emphasis added)). Whether in an effort to rebut Montgomery’s prima facie case or to establish their own affirmative defense, Defendants must be afforded an opportunity to probe the issue of truth during discovery.15
Having confirmed that the software is relevant, the Court also rejects Montgomery’s contention that Defendants forfeited their right to the software by failing to disclose information regarding their named expert witness by the August 3, 2015 deadline. See, e.g., Pl.’s Obj. to Portions of Magistrate Judge’s Order of Aug. 22, 2015 at 7–8. As Magistrate Judge Goodman concluded, this argument is “circular and unconvincing,” because Defendants could not produce an expert report without the underlying software the expert was to analyze. Order Den. Pl.’s Mot. to Stay One Para. of Disc. Order, ECF No. 122. In addition, Defendants have since served Montgomery with a partial report including the expert’s qualifications, so any omissions were harmless. See
Nor does Montgomery’s or his counsel’s alleged uncertainty about the location or classification of the software provide grounds for excusing his ability to produce it or for finding that he had no duty to preserve the evidence. Montgomery now invokes
Having filed a defamation lawsuit in which the working nature of Plaintiff’s software is a critical issue, it was Montgomery’s and his counsel’s obligation to retain a copy for purposes of the litigation—particularly in light of the fact that Montgomery and his counsel were aware that a request for production had been made in that regard. And, as explained below in the context of resolving Defendants’ motion for summary judgment, failure to produce or retain the software, for whatever reason (including that it might be classified), leaves Montgomery unable to provide evidence supporting an essential element of his claim. Excusing Montgomery’s failure to provide that evidence would overlook the fact that he never asserted in his initial objections to the production request that he did not possess the software, and would encourage litigants to file lawsuits without reviewing or retaining critical evidence necessary to prove their claims.
The Court also has serious reason to doubt that the software is, in fact, classified, and would not be subject to production.
Other than Mr. Klayman’s unsubstantiated say-so, the Court perceives no reason to doubt the Nevada court’s conclusion and find that the software is classified.17 The Government has not attempted to intervene in this case, despite the fact that it is well aware of the ongoing dispute over the software. Moreover, the CIA’s response to Defendants’ Touhy requests indicated that they did affirmatively search for a copy of Montgomery’s software and represented that they were unable to locate it. The CIA explicitly did not decline to conduct a search at all on the ground that the material was likely to be classified, as the agency did with respect to the other documents requested. See Letter from JoDean Morrow, Assistant Gen. Counsel, CIA, to Laura R. Handman (Nov. 13, 2015), ECF No. 178-3. The same is true for the Air Force’s Touhy response. See Letter from Robert F. Booth, Chief, Gen. Litig. Div., U.S. Air Force, to Laura R. Handman (Mar. 10, 2016), ECF No. 263.
Finally, to the extent Montgomery relies on the FBI’s continued efforts to search for the software as reason to object to the magistrate judge’s orders, the Court rejects those grounds for failing to comply with Magistrate Judge Goodman’s orders. Nothing indicates that a search remains ongoing. To date, over five months since the sanctions hearing, seven months since discovery closed, and ten months since Montgomery turned his hard drives over to the FBI, the Court is unaware of anything
For all of the foregoing reasons, the Court overrules Montgomery’s objections to the magistrate judge’s discovery orders concerning the production of the software.
3. Motion for Spoliation Sanctions
The fact remains that Montgomery never produced his software despite Defendants’ request and several court orders to do so. And that leaves Defendants’ motion for spoliation sanctions.19 A party has a duty to preserve potentially relevant evidence once litigation is anticipated. Chen v. District of Columbia, 839 F. Supp. 2d 7, 12 (D.D.C. 2011). A party that does not do so may be accused of spoliation—“the destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation”—and be subject to sanctions. Id. (quoting D’Onofrio v. SFX Sports Grp., Inc., No. 06-687, 2010 WL 3324964, at *5 & n.5 (D.D.C. Aug. 24, 2010)). A court may impose several possible sanctions for spoliation, including the
Defendants seek dismissal of Montgomery’s complaint both because of his failure to preserve and produce the software and because he violated the court’s repeated orders to produce the software. Such a punitive sanction is only justified when:
(1) the other party has been so prejudiced by the misconduct that it would be unfair to require [the party] to proceed further in the case; (2) the party’s misconduct has put an intolerable burden on the court by requiring the court to modify its own docket and operations in order to accommodate the delay; or (3) the court finds it necessary to sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.
Clarke v. Wash. Metro. Area Transit Auth., 904 F. Supp. 2d 11, 21 (D.D.C. 2012) (citing Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998)). Circuit law also “establishes that the Court may only grant a motion for punitive spoliation sanctions if the moving party demonstrates by clear and convincing evidence that the opposing party destroyed relevant evidence in bad faith.” Landmark Legal Found. v. EPA, 82 F. Supp. 3d 211, 220 (D.D.C. 2015) (emphasis in original) (citing Shepard v. ABC, Inc., 62 F.3d 1469, 1477 (D.C. Cir. 1995)).
Although the Court is substantially troubled by Montgomery’s and his counsel’s conduct in this case, the Court will deny Defendants’ motion. As explained below, the Court ultimately finds summary judgment warranted in favor of Defendants on the merits of this case. In favorably resolving Defendants’ motion for summary judgment, the Court provides Defendants in practical terms much of the result they seek in their spoliation motion—judgment in their favor—albeit by a different route. As Magistrate Judge Goodman’s pre-hearing order indicated, a number of factual and legal questions are raised in the particular context of this case which would make resolution of the spoliation issue labor intensive. See generally Order Scheduling Hr’g on Defs.’ Spoliation Sanctions Mot. (with Specific, Add’l Requirements), ECF No. 191. Despite Montgomery’s and his counsel’s actions, the Court is hesitant to allocate additional judicial resources to this discovery dispute, beyond the considerable resources already expended, for little additional gain. Therefore, in light of the Court’s entry of summary judgment in favor of Defendants, the Court will deny Defendants’ motion for spoliation sanctions.20
C. Defendants’ Motion for Summary Judgment
Defendants also move for summary judgment on several grounds. As explained below, the Court agrees that summary judgment is warranted here for several reasons. First, the Court agrees with Defendants that several statements Risen made in the Chapter or in ensuing interviews are non-actionable statements of subjective opinion or loose, hyperbolic language that is protected as a matter of law. Second, without record evidence demonstrating that Montgomery’s technology actually worked, Montgomery is unable to show that there is a genuine dispute of
1. Legal Standard
A court must grant summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See id. at 323. In response, the non-movant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See id. at 324. In considering a motion for summary judgment, a court must “eschew making credibility determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
2. Non-Actionable Statements of Opinion
Defendants first move for summary judgment on the ground that several of the statements contained in the Chapter are non-actionable statements of opinion. See Defs.’ Mem. Supp. Summ. J. at 19–21. While the First Amendment does not categorically immunize from liability all statements that are framed as opinion, see Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–21 (1990), “to be actionable under the First Amendment” a statement must nevertheless “at a minimum express or imply a verifiably false fact” about the plaintiff, Weyrich v. New Republic, Inc., 235 F.3d 617, 624 (D.C. Cir. 2001). A statement of opinion that “does not contain a provably false factual connotation” is not actionable under the First Amendment, and receives “full constitutional protection.” Milkovich, 497 U.S. at 20. Similarly, statements that are “‘loose, figurative, or hyperbolic’ . . . generally are not actionable in defamation.” Moldea v. N.Y. Times Co., 15 F.3d 1137, 1143 (D.C. Cir.) (“Moldea I”), rev’d in part on reh’g, 22 F.3d 310 (D.C. Cir. 1994) (quoting Milkovich, 497 U.S. at 21). Whether a statement “asserts actionable facts or implies
Several of the Chapter’s statements are non-actionable statements of opinion or hyperbole.21 For example, the Chapter states that:
[Montgomery] provides the perfect case study to explain how during the war on terror greed and ambition have been married to unlimited rivers of cash to create a climate in which someone who has been accused of being a con artist was able to create a rogue intelligence operation with little or no adult supervision. Crazy became the new normal in the war on terror, and the original objectives of the war got lost in the process.
Chapter at 31–32. Defendants argue that several of this passage’s statements are non-actionable. See Defs.’ Mem. Supp. Summ. J. at 20–21. The Court agrees. The assertion that Montgomery was motivated out of greed or ambition is a subjective judgment that is not verifiable. See, e.g., Underwager v. Channel 9 Austl., 69 F.3d 361, 367 (9th Cir. 1995) (concluding that statements concerning the plaintiff’s “motivations and personality” were opinion); Greenberg v. Western CPE, No. SACV 12-02074, 2013 WL 1628905, at *4 (C.D. Cal. Apr. 15, 2013) (finding “pure
speculation on the part of the author regarding Plaintiff s possible feelings or motivations behind his actions non-actionable statement of opinion); Fetter v. N. Am. Alcohols, Inc., No. 06-4088, 2007 WL 551512, at *12 (E.D. Pa. Feb. 15, 2007) (The alleged statements to the effect that the plaintiff was greedy, unreasonable, or foolish reflect personal opinion and therefore do not constitute defamation.). In addition, Risen s assertion that [c]razy became the new normal is also a loose, rhetorical turn of phrase, and a statement of Risen s subjective opinion. The statement, when considered in context, refers generally to the war effort, and not specifically to Montgomery. Even if it could be construed as describing Montgomery himself as crazy, however, that assertion would also be a non-actionable statement of opinion. Cf., e.g., Cook-Benjamin v. MHM Corr. Servs., Inc., 571 F. App x 944, 947 (11th Cir. 2014) (statement that plaintiff was stupider and crazy constitute [the speaker s] opinion and thus cannot be proven false). Indeed, Montgomery s Memorandum in Opposition does not respond to either of these arguments.22
statements to Trepp, Flynn, and others. See, e.g., Chapter at 32, 36, 37, 46. In those circumstances, and as discussed below, Montgomery has failed to show that those statements are false (indeed, having factually reported the statements of others from their sources, it is hard to understand how Risen could have published those statements with actual malice, either). During one television news interview, however, Risen himself appeared to agree with an interviewer s assertion that Montgomery was revealed as a con man. Am. Compl. ¶ 151. Montgomery claims that this statement was defamatory because Risen adopts, without qualification that Montgomery is a con man. Pl. s Opp n at 8-9. But Risen s own subjective opinion that Montgomery is a con artist is also a non-actionable opinion, particularly given the surrounding context of the Chapter and the information disclosed therein. See, e.g., Spelson v. CBS, Inc., 581 F. Supp. 1195, 1203 (N.D. Ill. 1984) (finding statements that individuals were cancer con-artists and practitioners of fraud non-actionable expressions of the rational conclusion gleaned from defendant s opinion).
The greatest point of dispute between the parties involves the Chapter s statement that:
Montgomery was the maestro behind what many current and former U.S. officials and others familiar with the case now believe was one of the most elaborate and dangerous hoaxes in American history, a ruse that was so successful that it nearly convinced the Bush administration to order fighter jets to start shooting down commercial airliners filled with passengers over the Atlantic.
Chapter at 32 (emphasis added). Defendants argue that the statement is an inherently subjective ranking of events that is not factually verifiable and consists of the author s (and the other officials ) own subjective opinion based on disclosed facts throughout the Chapter. See Defs. Mem. Supp. Summ. J. at 21.
Montgomery disagrees. In fact, he relies upon this statement innumerable times in his opposition and it seems to form the cornerstone of his defamation claims. See, e.g., Pl. s Opp n at 3, 4, 8, 12, 14. Montgomery s argument is unavailing, however. A person s opinion concerning which events rank among the greatest hoaxes in American history is a quintessential example of a subjective opinion. There is simply no method to objectively verify where an event ranks among the greatest hoaxes in American history—or whether a particular event even makes the list. As a result, the statement fails to express or imply a verifiably false fact about the plaintiff. Weyrich, 235 F.3d at 624.23
Yet, this alternative interpretation also fails for two reasons. First, Montgomery overlooks that the Chapter explicitly refers to officials beliefs, not any particular statement. See Chapter at 32 (stating that officials now believe [the circumstances surrounding Montgomery s technology] was one of the most elaborate and dangerous hoaxes in American history (emphasis added)). Contrary to Montgomery s argument, the Chapter never asserts that particular individuals expressed that exact turn of phrase, and Risen s own deposition describes the statement as his own articulation of the views he heard others express. See Risen Dep. at 290:16-292:14, ECF No. 234-3 (asserting that I believe . . . many people do believe that, and explaining that the statement is my language, not a direct quote and my phraseology based on having talked to a lot of people at the CIA and elsewhere about this operation . . . describing what they said). Moreover, an assertion that officials perceived Montgomery a particular way depends, again, entirely upon those officials particular viewpoints; it is difficult to prove false the assertion that someone thought or believed a particular thing, as opposed to an assertion that an individual affirmatively said or expressed a particular viewpoint. See, e.g., Mirafuentes v. Estevez, No. 1:15-cv-610, 2015 WL 8177935, at *3 (E.D. Va. Nov. 30, 2015) (concluding that an article s assertion that [the plaintiff] was perceived to be among the most corrupt Mexicans in 2013 is not actionable because it is not objectively verifiable and instead amounts to a subjective assertion).
Second, and in any event, even if it were possible to infer a provably false assertion from the statement, Montgomery is unable to show that Defendants made that assertion with actual malice. For the reasons explained below in Part III.C.4.b, Montgomery has not shown that Defendants published the Chapter with knowledge that Montgomery s technology worked or with reckless disregard to the truth or falsity of the Chapter s assertions. Instead, there is a plethora of evidence showing that officials and others who worked with Montgomery do believe his work to have been a hoax—evidence that Montgomery fails to dispute with concrete opposing evidence from which a jury could find actual malice by clear and convincing evidence. As a result, even if this assertion did not constitute non-actionable opinion, the Court holds that Montgomery s defamation claims fail to the extent they are based on it.
Defendants also argue that summary judgment should be granted in their favor because no reasonable jury could find on the basis of this record that the Chapter s statements concerning Montgomery s technology were false. If a plaintiff fails to present evidence from which a reasonable jury could find that the defendant s statements are false, summary judgment is warranted. See Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1294 (D.C. Cir. 1988).24 As the Court has already explained above in the context of the parties discovery dispute, Montgomery cannot succeed on his claim by showing actual malice, alone. To meet his burden on summary judgment, he must also show that the Chapter s statements were false. In his opposition to Defendants motion for summary judgment, Montgomery again asserts that he need not prove substantial falsity to succeed on his defamation by implication claims. See Pl. s Opp n at 22-23. The case he cites says exactly the opposite: defamation by implication arises when literally true statements . . . create a false impression. Jews for Jesus, 997 So. 2d at 1106. Thus, although Montgomery does not have to show that the challenged statements were literally false to succeed on a defamation by implication claim, he still must show that the challenged implication or meaning that a reader might reasonably derive from those true statements is false. Even Montgomery admits that a defamation by implication claim requires stating a fact or opinion that create[s] an overall impression that is false. Pl. s Opp n at 22. And the false implication the Amended Complaint claims many of the Chapter s statement creates is that he is a fraud and that his work is a scam and a hoax. Am. Compl. ¶ 208; see also, e.g., id. ¶¶ 216, 230. To prove defamation by implication he would have to show that this implication was, itself, false.25
Without the software, he cannot do so. Whether because the information is classified or because Montgomery gave it away to the government without retaining a copy, the simple fact is that the software, and therefore any ability to confirm
The only evidence in the record that Montgomery points to which might create a genuine issue of fact are his own, vague representations that the technology worked. See, e.g., Pl. s Opp n at 28. A plaintiff s own, even self-serving testimony will often suffice to defeat summary judgment—particularly where he has firsthand knowledge of a fact or observed an event, and where the case depends on the jury s resolution of competing testimony and witness credibility. See Johnson v. Perez, --- F.3d ----, 2016 WL 2941965, at *7 (D.C. Cir. May 20, 2016) (explaining that [t]o the extent the testimony of a witness who is also a party may be impaired by [a] party[ s] self-interest, it is ordinarily the role of the jury—not the court on summary judgment—to discount it accordingly); see also Desmond v. Mukasey, 530 F.3d 944, 965 (D.C. Cir. 2008). Yet, in other circumstances, a witness may lack personal knowledge concerning the matter about which he attempts to offer testimony, or may make a statement that is so conclusory—and presented without any supporting facts in the record—that it leaves the jury in no position to assess the veracity of his statement. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (holding that the plaintiff s conclusory statement that the student who was hired instead of her had less experience and education could not defeat summary judgment because, [a]bsent supporting facts[,] . . . a jury would be in no position to assess her claim of superiority ). Compare Ass n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep t of Transp., 564 F.3d 462, 465 (D.C. Cir. 2009) (discussing Greene and further noting that a court need not assume the truth of conclusory allegations lacking a factual basis in the record), with Geleta v. Gray, 645 F.3d 408, 412 (D.C. Cir. 2011) (distinguishing Greene and finding the plaintiff s allegation that his new position lacked supervisory responsibilities sufficed to survive summary judgment because the lack of supervisory responsibilities was a fact known personally to the plaintiff and his supervisor, who testified to the same information, and thus [n]o further factual background [was] necessary to support these claims ).
Here, while Montgomery of course has personal knowledge concerning whether or not the software worked, his generalized, conclusory assertion nevertheless fails to place the trier of fact in a position to assess whether the Chapter s claims about the software were false. As Montgomery s own counsel hypothesized at the sanctions hearing, it could turn out that certain portions of the software did not work as represented. See, e.g., Sanctions Hr g Tr. at 81:18-23, 181:25-182:6. Providing the jurors with evidence that would allow them to measure the size of any gulf between fully operational technology and technology that works only in certain respects is critical to Montgomery s burden to show falsity. Montgomery would have to show that any falsity was material, because [m]inor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge [can] be justified. Masson, 501 U.S. at 517 (internal quotation marks and citation omitted); see Air Wis. Airlines Corp, 134 S. Ct. at 861. Thus, without background information concerning the software, how it operated, and to what extent it worked, the jury will be unable to assess Montgomery s conclusory claim.
And there is reason to believe that such additional background information, if it did exist, was available in the record. At the August 21, 2015 discovery hearing, there was some discussion of the government s own tests confirming the validity of Montgomery s software. Montgomery claims to have produced that information to the Defendants (although the evidence appears to have consisted of one, single-page document). See Tr. of Disc. Hr g at 74:9-77:3, ECF No. 110. Tellingly, however, no document confirming that the government tested and confirmed the validity of Montgomery s software has been presented on summary judgment. There is no mention of this evidence in Montgomery s opposition to Defendants motion for summary judgment.28 Indeed, the Air Force s
Without any evidence beyond Montgomery s general representation that the software worked, a reasonable jury would not be in a position to assess his claim that the Chapter s assertions that the software was fraudulent or a hoax were false. As a result, Montgomery is unable to make a prima facie case on any defamation claim based on the statement or implication that his software did not work, and Defendants motion should be granted for the bulk of Montgomery s claims on this ground alone. And even if his general statement is sufficient to create a triable fact on falsity, he has failed to identify evidence that would allow a reasonable jury to find actual malice by clear and convincing evidence, as the Court explains below.
Montgomery similarly is unable to show that the Chapter s claims that Trepp and Flynn now believed Montgomery to be a con or fraud were false, to the extent those statements can even be considered actionable as statement of non-opinion. See, e.g., Am. Compl. ¶ 110 (referring to Chapter s assertion that Montgomery has been accused of being a con artist ); id. ¶ 119 (quoting statement that Michael Flynn, Montgomery s former lawyer—who later concluded that Montgomery was a fraud . . . ); id. ¶ 121 (referring to statement that Trepp later told the FBI that he eventually learned that Montgomery had no real computer software programming skills, according to court documents that include his statements to the FBI ). The record indicates that these assertions are literally true. During Montgomery s deposition in his bankruptcy proceeding, Flynn stated that I know you conned me and you conned the U.S. Government . . . You re a computer hacker and you re a fraud, Mr. Montgomery. Montgomery Dep. at 230:2-5, ECF No. 203-16. Flynn also filed an affidavit in which he wrote that Blxware s valuation is fraudulent because the technology as represented does not exist. Aff. of Michael J. Flynn ¶ 13, ECF No. 203-17. Similarly, Trepp s statement to the FBI reads: recently Trepp has found out that Montgomery s skills may not be what he has purported them to be. Risen Decl. Ex. 15 at 5, ECF No. 203-15.29 Montgomery points to no evidence that these statements—drawn directly from court or government documents repeating them—were false.
4. Actual Malice
Defendants prevail on much, if not all, of their motion because Montgomery s
a. Limited-Purpose Public Figure
As a constitutional matter, the level of fault a plaintiff must prove to prevail in a defamation case depends on the plaintiff s status as a public official or public figure, on the one hand, or a private figure on the other. A more circumscribed group of public figures also exists: as the Supreme Court explained in Gertz v. Robert Welch, Inc., 418 U.S. 323, an individual might voluntarily inject[] himself or [be] drawn into a particular public controversy and thereby become[] a public figure for a limited range of issues. Id. at 351. Such individuals are commonly referred to as limited-purpose public figures. Jankovic v. Int l Crisis Grp., --- F.3d ----, Nos. 14-7171, 14-7178, 2016 WL 2640526, at *3 (D.C. Cir. May 10, 2016). Like their public official and general-purpose public figure counterparts, the Constitution requires that a limited-purpose public official show actual malice by clear and convincing evidence to succeed on a defamation claim. See Gertz, 418 U.S. at 342; see also Clyburn v. News World Commc ns, Inc., 903 F.2d 29, 31 (D.C. Cir. 1990). A different rule applies for private individuals, however. Gertz, 418 U.S. at 343. So long as states do not impose liability without fault, the Supreme Court has held that states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. Id. at 347.
Whether the plaintiff is a public figure is a question of law to be resolved by the court. Dameron v. Wash. Magazine, 779 F.2d 736, 740 (D.C. Cir. 1985). In Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980), the D.C. Circuit developed a three-prong test for determining whether an individual is a limited-purpose public figure. See id. at 1296-98. A court must: (1) identify the relevant controversy and determine whether it is a public controversy; (2) determine whether the plaintiff played a significant role in that controversy; and (3) determine whether the allegedly defamatory statement is germane to the plaintiff s participation in the controversy. Jankovic, 2016 WL 2640526, at *4 (citing Waldbaum, 627 F.2d at 1296-98); see also Tavoulareas v. Piro, 817 F.2d 762, 771-75 (D.C. Cir. 1987) (en banc).30
Defendants claim that Montgomery is a limited-purpose public figure and thus must show actual malice to prevail on his defamation claims. See Defs. Mem. Supp. Summ. J. at 25-28. The Court agrees. Montgomery s participation in the controversy depicted in the allegedly defamatory Chapter at issue here satisfies all three prongs set forth in Waldbaum.
Admittedly, the relevant public controversy involves several angles. Montgomery contends that there are in fact two separate controversies at issue: one involving the efficacy and use of his software, and the other involving a different controversy about Congressman Gibbons. Pl. s Opp n at 23; see also id. at 24 (referring to two different controversies ). Despite the somewhat discrete issues, however, the Court views the controversy as an undifferentiated whole. Courts often define the public controversy in expansive terms, and a court may find that there are multiple potential controversies, and it is often true that a narrow controversy may be a phase of another, broader one. Jankovic, 2016 WL 2640526, at *5 (quoting Waldbaum, 627 F.2d at 1297 n.27). In this case, Montgomery s allegations about Congressman Gibbons s relationship with Trepp raised questions about the government contracts eTreppid had secured, and the government s use of the technology more generally. Gibbons and Trepp both claimed that the government contracts had been secured based on the technology s merit. See, e.g., Risen Decl. Ex. 5. And that line of inquiry eventually connected Montgomery s software to the pre-existing reporting, from as early as 2005, that the decision to ground airplanes in December 2003 was based on noise filtering software that government officials had come to believe was wrong. See id. Ex. 4 (reproducing Lisa Myers and Aram Roston article). Indeed, the Court finds it instructive that, like the Chapter at issue in this case, some of the news reports that pre-dated the Chapter canvassed multiple of these angles in a single story. See, e.g., Risen Decl. Exs. 8, 10, 11; cf. Jankovic, 2016 WL 2640526, at *5 (noting that the D.C. Circuit has on occasion even defined controversies as being broader than the narrower discussion contained in the defamatory document (emphasis added)). Ultimately, the Court is unconvinced that the controversy can so easily be divided into distinct, constituent parts. Montgomery s bald assertion to the contrary—that Defendants argument that two different controversies are actually the same is entirely
Second, Montgomery achieved a special prominence in the debate and purposely attempted to influence the outcome or could be expected to have an impact on its resolution. Waldbaum, 627 F.2d at 1297. Montgomery first came forward with the allegations concerning Representative Gibbons and eTreppid s government contracts. NBC News then interviewed Montgomery as part of a news report concerning his allegations. See Risen Decl. Ex. 7. During that interview, Montgomery claimed that he saw Trepp give Gibbons more than $100,000. Id. Although he says the only television appearance he did was a short blurb done only at the advice of counsel, Pl. s Opp n at 25, he strongly understates the content of the interview, and ignores that the interview—albeit perhaps his most high-profile statement—was only the culmination of his participation in this aspect of the controversy, which began with a sworn affidavit Montgomery filed in a lawsuit he had filed against Trepp regarding the software. See, e.g., id. Ex. 5. In addition, his allegations led Gibbons and Trepp to claim that the contracts were awarded on their merits. See id. The lawsuit naturally invited scrutiny of the technology that was the subject of some of those contracts. As the D.C. Circuit has explained, [t]hose who attempt to affect the result of a particular controversy have assumed the risk that the press, in covering the controversy, will examine the major participants with a critical eye. Waldbaum, 627 F.2d at 1298. Montgomery can hardly be heard to complain that the focus of the inquiry shifted from his dispute with Gibbons and Trepp to the validity of his technology, itself.
Moreover, even if the relevant public controversy was cabined solely to the efficacy of Montgomery s software and the government s actions taken in reliance upon it, Montgomery remains a limited-purpose public figure with respect to that distinct controversy. Whether a particular plaintiff injected himself into the controversy is not the be-all and end-all of public figure status. Dameron, 779 F.2d at 741. Although the second prong of the Waldbaum analysis often considers the plaintiff s voluntary actions that have caused him to become embroiled in a public controversy, the Supreme Court has recognized that it is possible, although difficult and rare, to become a limited-purpose public figure involuntarily. Id. at 741-42 (emphasis in original); see also Waldbaum, 627 F.2d at 1298 (explaining that when someone is caught up in [a] controversy involuntarily and, against his will, assumes a prominent position in its outcome, he has invited comment relating to the issue at hand, unless he rejects any role in the debate ). In Dameron, for example, the D.C. Circuit concluded that an air traffic controller—who had been on duty at Dulles International Airport on the day that a plane crashed into Mt. Weather, Virginia—became a limited-purpose public figure in the ensuing controversy about the accident s causes. The accident was discussed as part of an article concerning safety problems at Washington National Airport and air traffic controllers contributions to crashes, more generally. See Dameron, 779 F.2d at 738, 742.
In this case, newspaper coverage regarding the government s use of Montgomery s software well predated publication of the Chapter. NBC News first reported on
Finally, there is no dispute that the Chapter s statements—which discuss the government s use of Montgomery s technology and allegations concerning whether it worked—are germane to the public controversy. Montgomery does not argue otherwise. Accordingly, the Court concludes that Montgomery is a limited-purpose public figure and proceeds to consider whether he can meet the actual malice standard.
b. Actual Malice
As the Supreme Court has explained, an erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the breathing space that they need . . . to survive. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964) (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)). Thus, the Court has held that, as a constitutional matter, a public official or public figure cannot prevail on a defamation claim unless he proves the defendants false and
Moreover, the inquiry also focuses on the subjective beliefs of the particular defendant at issue. The yardstick is not whether a reasonably prudent man would have published, or would have investigated before publishing. St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Rather, a court must ask whether a particular defendant in fact entertained serious doubts as to the truth of his [or her] publication. Id. (emphasis added). Relying on the examples the Court set forth in St. Amant, the D.C. Circuit has further fleshed out this inquiry, holding that to establish actual malice a plaintiff must show, by clear and convincing evidence, that when the defendants published the alleged defamation[] they were subjectively aware that it was highly probable that the story was (1) fabricated; (2) so inherently improbable that only a reckless person would have put [it] in circulation; or (3) based wholly on an unverified anonymous telephone call or some other source that appellees had obvious reasons to doubt. Lohrenz v. Donnelly, 350 F.3d 1272, 1283 (D.C. Cir. 2003) (alterations in original) (quoting Tavoulareas, 817 F.2d at 790 (en banc)); see also St. Amant, 390 U.S. at 732.
The clear and convincing evidence standard of proof is also of critical importance, even at summary judgment. The court must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times. Anderson, 477 U.S. at 254. A plaintiff cannot survive summary judgment—and there is no genuine issue of material fact— if the evidence presented in the opposing affidavits, or otherwise present in the record is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence. Id. To be sure, and as the D.C. Circuit has acknowledged, there is some facial appeal to the argument that issues of actual malice should not be decided at summary judgment. Lohrenz, 350 F.3d at 1283. Considering whether a speaker knew or had serious reason to believe that his speech was false necessarily entails mining the speaker s subjective state of mind, and turns to a large degree on questions of credibility and nuance. Id. Yet, the heavy burden of clear and convincing evidence that the Supreme Court has established makes that facial appeal misplaced. Id.; see also Anderson, 477 U.S. at 256. A plaintiff cannot defeat a properly supported motion for summary judgment by merely asserting that the jury might . . . disbelieve the defendant s denial . . . of legal malice. Anderson, 477 U.S. at 256. Instead, the plaintiff must
Here, Defendants point to an abundance of evidence in the record tending to show that Risen and Houghton Mifflin neither knew nor had reason to suspect that the Chapter s assertions regarding Montgomery, his technology, and the surrounding circumstances were false. Of most relevance is the plethora of other news articles, court documents, and government records, pre-dating the Chapter, which align with and corroborate the Chapter s general thrust: that Montgomery s technology did not work as billed.32 For example, the Chapter expressly
acknowledged Aram Roston‘s prior article in Playboy magazine and Risen and Eric Lichtblau‘s prior article in the New York Times, which both made substantially similar claims regarding Montgomery‘s technology. See Chapter at 53; see also Risen Decl. ¶¶ 5, 15; id. Exs. 3, 11. Risen also asserts in a declaration that he also relied on a number of additional articles, which he attaches. See Risen Decl. ¶¶ 8-18; id. Exs. 4-14. Each of those articles make similar factual claims, and none have been retracted or otherwise called into dispute. Indeed, Risen asserts that “[t]o my knowledge, up to the time of publication and today, none of the articles I reviewed and relied [upon] were subject to a correction, retraction, or lawsuit.”33 Risen Decl. ¶ 7. Generally, a defendant‘s “good faith reliance on previously published reports in reputable sources . . . precludes a finding of actual malice as a matter of law.” Liberty Lobby, Inc., 838 F.2d at 1297.
Risen also testified that he relied on statements made by Trepp, Flynn, Montgomery‘s former employees, and others in FBI interview reports and court documents. See, e.g., Risen Decl. ¶¶ 20-25; Risen Dep. at 109:19-110:5. For example, the FBI‘s report of its interview with Warren Trepp states that Trepp had “recently learned that Montgomery would require eTreppid employees to falsify the results of live demonstrations for it‘s [sic] customers.” Risen Decl. Ex. documents when considering defendants’ motions for summary judgment in defamation cases. See, e.g., Liberty Lobby, 838 F.2d at 1296-97 (substantively discussing several articles upon which the defendant had relied).
15 at 5.34 An Air Force Office of Special Investigation Inquiry report also reproduces the statement of Jesse Anderson, an employee of eTreppid, who recalled a demonstration of Montgomery‘s object recognition software during
And Risen also states that he further corroborated these individuals’ claims with other government officials.35 See Risen Decl. ¶¶ 26-35. For example, he asserts that CIA Paris Station Chief William D. Murray told him about the French Intelligence Agency‘s efforts to reverse-engineer Montgomery‘s software and that the agency‘s conclusion that the broadcasts contained insufficient pixels to contain hidden messages. Id. ¶ 27. Defendants produced the copy of an e-mail Risen received from CIA spokeswoman Jennifer Youngblood, who stated that “the CIA looked at what Montgomery claimed he could do but determined that his threat detection tools weren‘t exactly as billed.” Id. ¶ 29; id. Ex. 21.
Finally, Risen interviewed Montgomery and published his denials and counterclaims throughout the Chapter. Indeed, the Chapter emphasizes those comments by placing them in the opening pages and the closing paragraph, among other places. See, e.g., Chapter at 33-34, 37, 41, 53. As the D.C. Circuit has explained, “reporting perspectives at odds with the publisher‘s own, ‘tend[] to rebut a claim of malice, not to establish one.‘” Lohrenz, 350 F.3d at 1286 (quoting McFarlane v. Esquire Magazine, 74 F.3d 1296, 1304 (D.C. Cir. 1996)). Disclosing this contrary narrative in fact shows that Defendants ferreted out conflicting information and examined it, which suggests, in turn, that by the time they published the Chapter they held no serious doubts about its truth.
Collectively, this evidence paints a bleak picture for Montgomery‘s claims, and Montgomery‘s effort to rebut it and demonstrate a triable issue of actual malice is unavailing.36 As an initial matter,
But even assuming, merely for the sake of argument, that the Chapter‘s statements turned out to be false, Montgomery has not identified record evidence that would “allow a rational finder of fact to find actual malice by clear and convincing evidence.” Anderson, 477 U.S. at 254. Although each of Montgomery‘s assertions will be discussed in detail, the Court pauses to emphasize that the vast majority of his arguments suffer from a basic infirmity. A party opposing the entry of summary judgment must present concrete “affirmative evidence” beyond “mere allegation or denials” that demonstrates a genuine issue of fact for trial. Id. at 256-57. For that reason, conclusory statements unaccompanied by supporting facts in the record are insufficient to defeat a motion for summary judgment. See, e.g., Greene, 164 F.3d at 675. Despite this requirement, much of Montgomery‘s opposition relies on unsupported assertions and speculation. And in the few instances he does cite or point to actual record evidence, that evidence does not suffice to show actual malice by clear and convincing evidence.
First, Montgomery argues that his own statements to Risen suggesting his story was inaccurate gave Risen reason to know that the Chapter‘s claims were false. See Pl.‘s Opp‘n at 27. The e-mails Montgomery points to largely consist of Montgomery questioning why Risen has not focused his attention on Trepp, Flynn, or government officials, and Risen seeking certain documents to corroborate some of Montgomery‘s own claims.37 See Pl.‘s Opp‘n Exs. 13, 14. Although Montgomery never makes a full-throated denial of the Chapter‘s claims, in the e-mails he does make some passing assertions that his technology “is still being used against Americans for covert purposes,” Pl.‘s
Next, Montgomery claims that the Defendants knew all of the sources they relied upon had either an ongoing feud with Montgomery or a motivation to shift responsibility from their own actions to Montgomery. See Pl.‘s Opp‘n at 26. He points specifically to Trepp and Flynn, with whom he claims he was locked in litigation over eTreppid‘s assets, including his software, and their statements that they now believed Montgomery to be a fraud or a con man. He also points to the government officials Risen quotes-named and unnamed-who Montgomery argues were simply “shifting the blame for their own bad decisions and failures onto a private individual as a scapegoat.” Pl.‘s Opp‘n at 28. It is true that, although a publisher‘s failure to investigate “does not itself establish bad faith,” once “the publisher has obvious reasons to doubt the accuracy of a story, the publisher must act reasonably in dispelling those doubts.” Lohrenz, 350 F.3d at 1284 (citing St. Amant, 390 U.S. at 733, 731). But the mere possibility that a source may be biased in some way or hold a subjective viewpoint does not, without more, create obvious reasons to doubt a source‘s accuracy or establish actual malice. Id. (concluding that evidence that the publishers “were on a mission to reinstate the ban against women being assigned to combat positions in the military does not suffice to show actual malice,” and that acting on the “basis of a biased source and incomplete information” does not show actual malice). Indeed, the D.C. Circuit has affirmed the entry of summary judgment where a speaker had “reason to be wary” of a source but “also had some reason to believe the story, based upon his own research and his conversations with journalists and experts“-research and conversation that “gave him reason to believe that the allegations were not fabricated.” McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1513 (D.C. Cir. 1996). That is exactly the case here. Risen does not deny that he was aware of the litigation between Trepp, Montgomery, and Flynn. Indeed, he draws several of the quotes from documents filed in those cases, and acknowledges in the Chapter that Montgomery “insists that the charges have been leveled by critics with axes to grind, including his former lawyer and former employees.” Chapter at 33. As in McFarlane, here Risen corroborated the Chapter‘s basic claim across several different sources, undercutting Montgomery‘s claim of bias. Montgomery does not identify anything other than the possibility of bias that might have otherwise raised serious doubts about these sources’ claims.
Montgomery similarly points to the fact that the government neither prosecuted him nor asked for its money back. See Pl.‘s Opp‘n at 26. He claims that “Defendants ignore[d] warning signs that the U.S. Government kept re-hiring Dennis Montgomery and his employers through various contracts and various businesses as evidence that his software and technology was valuable and worked.” Pl.‘s Opp‘n at 28. To the contrary-Defendants explicitly acknowledge this fact, and the Chapter states that “[e]ven more stunning, after the debacle over the bogus Christmas 2003 terrorist threats, Montgomery kept getting classified government contracts awarded through several different corporate entities.” Chapter at 47. The Chapter drew a different inference from this fact: it asserted that “[t]he secrecy that surrounded [Montgomery‘s] work once again worked in his favor” and that he was able to secure contracts because “CIA officials were reluctant to tell their Pentagon counterparts much about their experiences with Montgomery.” Id. An “adoption of one of a number of possible rational interpretations” is “not enough to create a jury issue of ‘malice’ under New York Times,” particularly absent warning signs which would have led Risen to doubt his account. Time, Inc. v. Pape, 401 U.S. 279, 290 (1971); see Silvester v. ABC, Inc., 650 F. Supp. 766, 779 (S.D. Fla. 1986) (“Members of the news media may spin their own theories so long as those propositions are not so unreasonable under the circumstances as to demonstrate malice.“). And again, the falsity issue becomes a hurdle for Montgomery because he provides nothing other than his own say-so to show that the government is, in fact, still using his software.39
Next, Montgomery makes the unsupported claim that Risen‘s original publisher, Simon & Schuster, refused to publish his book because he could not support the book‘s claims. See, e.g., Pl.‘s Opp‘n at 3, 5, 16-18. This assertion is not supported by the record. When one actually looks at the e-mail correspondence Montgomery cites, it becomes clear that the Simon & Schuster editor with whom Risen worked merely raised concerns that several of the chapters might not work in concert to advance a central thesis, and suggested that additional chapters might be written to shift the book‘s focus. As to the specific Chapter discussing Montgomery, however, the editor never raised a single substantive objection. Instead, she highlighted it as among the strongest in the book and always suggested that it remain. See Pl.‘s Mot. for Leave to File Under Seal, Ex. A., ECF No. 272-4.40
At bottom, the limited evidence Montgomery has supplied does not show by clear and convincing evidence that Defendants subjectively knew the Chapter‘s assertions were false or acted with reckless disregard as to those assertions’ truth or falsity. The evidence and speculation on which Montgomery relies “is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence,” Anderson, 477 U.S. at 254, and Defendants’ motion to summary judgment must therefore be granted.41
Finally, it is hornbook law that “a plaintiff may not use related causes of action to avoid the constitutional requisites of a defamation claim.” Moldea II, 22 F.3d at 319-20. Where a plaintiff‘s “defamation claim[s] fail[], so do [his] other tort claims based upon the same allegedly defamatory speech.” Farah v. Esquire Magazine, 736 F.3d 528, 540 (D.C. Cir. 2013); see also Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) (holding that a public official must show a false publication made with actual malice in order to recover on intentional infliction of emotional distress claim); Farah, 736 F.3d at 540 (affirming dismissal of plaintiffs’ tortious interference claim); Unelko Corp. v. Rooney, 912 F.2d 1049, 1058 (9th Cir. 1990) (concluding that plaintiff could not succeed on a tortious interference claim where summary judgment was properly granted on defamation claims). Montgomery merely asserts that summary judgment must be denied because his defamation claims survive summary judgment. See Pl.‘s Opp‘n at 35. Having concluded otherwise, the Court will also grant summary judgment to defendants on Montgomery‘s intentional infliction of emotional distress, tortious interference with prospective advantage, and common law assault claims.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (ECF No. 201) is GRANTED; Defendants’ motion to
Dated: July 15, 2016
RUDOLPH CONTRERAS
United States District Judge
Notes
Tr. of Disc. Hr’g at 6:25–7:10, ECF No. 110; see also id. at 7:25–8:18 (representing that “relative to this case the software is included” in what was turned over to the FBI). For his part, Mr. Klayman now states that he has never even seen or reviewed the software that forms the basis of Montgomery’s complaint—and partially offers that as an explanation for why he does not know if the software was ever turned over. See, e.g., Sanctions Hr’g Tr. at 31:24–32:3; id. at 50:20–25; id. at 65:24–66:3; id. at 114:20–21. This assertion implies that Mr. Klayman filed this lawsuit without a rigorous attempt to verify the claims that the software did in fact work—claims he asserted were false and defamatory. The Court is not insensitive to Mr. Klayman’s assertion that the software is classified (despite the absence of any real evidence showing it is), but his admissions nevertheless raise serious questions about whether he conducted the investigation necessary to meet his obligations as counsel underTHE COURT: The FBI has the software?
MR. KLAYMAN: They have the software, yes.
THE COURT: How did they get it?
MR. KLAYMAN: Because Mr. Montgomery provided it to them.
THE COURT: When?
MR. KLAYMAN: He provided it to them three days ago. It has been in the process to provide that to them and he provided them a lot of other information too, which they are looking at because it is classified information and he is a whistleblower.