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Court Grants Summary Judgment in Lieu of Spoliation Sanctions

Posted on August 5th, 2016

In Montgomery v. Risen, et. al., Case No. 16-0126 (District of Columbia, Jul. 15, 2016), Defendants published a non-fiction book related to the United States war on terror. One chapter in the book involves Plaintiff, who claimed to have developed technologies used by the government following the 9/11 attacks, including technology that Plaintiff claimed could detect codes hidden in Al Jazeera broadcasts. The book, Pay any Price: Greed, Power, and Endless War (Risen, James; Mifflin Harcourt, 2014) indicated that certain government officials as well as Plaintiff’s former employees and others believed the technology did not work, repeating assertions of others that Plaintiff is a “con man” and that his technology is a hoax. Plaintiff filed a defamation action. Numerous discovery motions were filed in the case, and Defendants filed a Motion for Summary Judgment.

Defendants sought production of Plaintiff’s software, which Plaintiff never produced, despite multiple court orders requiring him to turn it over. Plaintiff argued that the software was not relevant and that Defendants gave up the right to the software when they failed to disclose certain expert witness information by the deadline. Finally, Plaintiff argued that he didn’t have access to the software anymore because he had turned his computers over to the FBI.  Defendants file a Motion for Sanctions in conjunction with their summary judgment motion.

The court found that Plaintiff and his counsel behaved in a troubling manner in refusing to turn over the software and then eventually claiming not to have it; however, the court denied the Motion for Sanctions. The Motion sought the sanction of dismissal; the court determined that resolution of the spoliation issue would be “labor intensive” and that, after reviewing all the facts, Defendants were entitled to summary judgment in lieu of spoliation sanction of dismissal, which would bring about the same result for Defendants. Therefore, the court denied the Motion for Sanctions but granted summary judgment in favor of Defendants, thus ruling against Plaintiff on the merits.

ILS – Plaintiff eDiscovery Experts

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