1 IN UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO.: 15-cv-20782-Martinez-Goodman DENNIS MONTGOMERY,

Plaintiff,v. RISEN, ET AL. Defendants. _____________________________/ PLAINTIFFS PRELIMINARY RESPONSE TO DEFENDANTS MOTION TO MODIFY SCHEDULING ORDER AND REQUESTFOR HEARING FOR AUGUST 17 OR AUGUST 18 Plaintiff, Dennis Montgomery, hereby respectfully files this preliminary response to Defendants Motion To Modify Scheduling Order And Request For Hearing For August 17 Or August 18. Having received Defendants Motion To Modify Scheduling Order And Request For Hearing For August 17 or August 18 at 4:02 p.m. EDT, filed at the 12th hour just prior to the weekend, Plaintiff Dennis Montgomery and counsel are unable to fully respond in time for any hearing which this Court has been asked on such short notice to set, prior to any proscribed time allotted for opposition, on August 17th or 18th.Plaintiffs counsel will be out of the office in any event during these days. Defendants 12th hour motion, even if meritorious, which it is not, could have been filed much earlier as to give Plaintiff an opportunity to respond and contains many factual misstatements and in some instances outright falsities.Case 1:15-cv-20782-JEM Document 102 Entered on FLSD Docket 08/14/2015 Page 1 of 52 As set forth in the attached correspondence, there remains ample time to finish discovery and go to trial as previous ordered by this Court in its Order Setting Civil Trial Date And Pretrial Schedule, Requiring Mediation, And Referring Certain Motions To Magistrate Judge of May 5, 2015 (ECF No. 48). As to underscore Defendants lack of good faith, and as set forth in the attached correspondence, Plaintiffs counsel responded with the following in response to Defendants counsels attempts to postpone Mr. Montgomerys deposition by nearly three weeks after having agreed upon and scheduled the date of August 20, 2015: Ladies and Gentlemen We oppose your proposed modification of the pretrial and trial deadlines. It is also inappropriate to not take plaintiff's deposition and attempt to reset it at this late date after he and his counsel have arranged their schedules and made plans at great expense and time and agreed with you on the date. In the unlikely event you prevail on any motion to compel and we plan on filing one as well there is plenty of time to undertake further discovery within the parameters of the current and in effect discovery deadline. Accordingly your suggested modification is just your latest attempt to delay adjudication of this case attempting to take advantage of plaintiff's serious and severely debilitating and potentially fatal brain anneurism and related illnesses. Previously you tactically attempted to stay all discovery to delay not just discovery but the trial date. The judge made it clear that he wants the case to proceed expeditiously and we intend to do so. We therefore look forward to producing plaintiff for deposition [i]n Miami in defendants' counsels offices at the previously agreed time on August 20 and will strenuously oppose your proposed modification of the pretrial and trial schedule. Please govern yourselves accordingly. Email to Defendants counsel, dated Thursday, August 13, 2015. Exhibit 1. Case 1:15-cv-20782-JEM Document 102 Entered on FLSD Docket 08/14/2015 Page 2 of 53 Plaintiffs counsel stated the following in an email sent later that evening: Dear Mr. Toth: We stand by the position outlined in our earlier email of today. In addition, we are not available on September 11 or that weekend. In the interim, our schedule changed, as is normal for litigators and trial lawyers, given our various commitments. Thus, if you do not decide to proceed with Mr. Montgomery's deposition on the previously agreed date of August 20, 2015, given that Mr. Montgomery and his counsel relied on your "good faith" representations that you would take his deposition then and he thus put off an operation for his severe medical condition to be present and we as counsel blocked off our schedule, made logistical arrangements and also rearranged commitments in various local, then it is our position that Defendants will have forfeited their "rights" to depose Mr. Montgomery. Its clear that your objective with all of this late maneuvering is to delay the trial. This has been your objective from the very first, and that became clear to the judge at the first status conference. That is why we have the pretrial and trial schedule that is currently in effect. The judge did not want any delay particularly given Mr. Montgomery's serious medical condition. Please attach this email as well to any motion you may decide to file, which in my view would be nonmeritorious and frivolous as there is more than enough time to complete discovery before the current deadline. Email to Defendants counsel, dated Thursday, August 13, 2015. Exhibit 1. Plaintiff will respond more fully within the time allotted by the Federal Rules of Civil Procedure and the Local Rules for the U.S. District Court for the Southern District of Florida. Finally, Defendants have just informed Plaintiff that they will proceed with Mr. Montgomerys deposition on August 20, 2015 if the Court does not grant their [nonmeritorious] request for emergency relief. Exhibit 2. Dated: August 14, 2015 Case 1:15-cv-20782-JEM Document 102 Entered on FLSD Docket 08/14/2015 Page 3 of 54 Respectfully Submitted, /s/ Larry Klayman Larry Klayman, Esq. FL Bar No. 246220 7050 W Palmetto Park Rd. Suite 15-287 Boca Raton, FL 33433 Case 1:15-cv-20782-JEM Document 102 Entered on FLSD Docket 08/14/2015 Page 4 of 55 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 14th day of August 2015, a true and correct copy of the foregoing was served via email and U.S. Mail upon the following: Sanford Lewis Bohrer Brian TothHolland & Knight, LLPSuite 3000701 Brickell AveMiami, FL 33131Email: sbohrer@hklaw.comEmail: brian.toth@hklaw.com Laura R. HandmanMicah Ratner Davis Wright Tremaine LLP1919 Pennsylvania Ave., N.W., Suite 800Washington D.C. 20006-3401Email: laurahandman@dwt.com Email: MicahRatner@dwt.com Attorneys for Defendants /s/ Larry Klayman Larry Klayman, Esq. Case 1:15-cv-20782-JEM Document 102 Entered on FLSD Docket 08/14/2015 Page 5 of 5 Exhibit 1 Case 1:15-cv-20782-JEM Document 102-1 Entered on FLSD Docket 08/14/2015 Page 1 of 51Toth, Brian W (MIA - X27510)From: Larry Klayman Sent: Thursday, August 13, 2015 6:52 PMTo: Toth, Brian W (MIA - X27510)Cc: Dina James; Handman, Laura; Bohrer, Sandy (MIA - X27678); Ratner, MicahSubject: Re: Montgomery v. Risen -- motion to modify the scheduling orderDear Mr. Toth: We stand by the position outlined in our earlier email of today. In addition, we are not available on September 11 or that weekend. In the interim, our schedule changed, as is normal for litigators and trial lawyers, given our various commitments. Thus, if you do not decide to proceed with Mr. Montgomery's deposition on the previously agreed date of August 20, 2015,given that Mr. Montgomery and his counsel relied on your "good faith" representations that you would take his deposition then and he thus put off an operation for his severe medical condition to be presentand we as counsel blocked off our schedule, made logistical arrangements and also rearranged commitments in various local, then it is our position that Defendants will have forfeited their "rights" to depose Mr. Montgomery. Its clear that your objective with all of this late maneuvering is to delay the trial. This has been your objective from the very first, and that became clear to the judge at the first status conference. That is why we have the pretrial and trial schedule that is currently in effect. The judge did not want any delay particularly given Mr. Montgomery's serious medical condition. Please attach this email as well to any motion you may decide to file, which in my view would be non-meritorious and frivolous as there is more than enough time to complete discovery before the current deadline. Larry Klayman, Esq. Counsel for Mr.Montgomery On Thu, Aug 13, 2015 at 2:53 PM, wrote: Mr. Klayman,

We will attach your e-mail to our motion to modify the scheduling order.

As for Mr. Montgomerys deposition, we will not be going forward on August 20. You have objected to producing critical discovery to us in large part, but not in whole part, Mr. Montgomerys software that is at the heart of his complaint. We have tried to work this issue out with you and have followed all procedures to have it resolved before Judge Goodman. That will occur on August 27 or shortly thereafter, and it is unfair (and inefficient) to force us to depose Mr. Montgomery without having this important matter resolved and without the benefit of discovery that we believe we are entitled to under the law.

Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 2 of 5 Case 1:15-cv-20782-JEM Document 102-1 Entered on FLSD Docket 08/14/2015 Page 2 of 52We again ask that you hold September 11 as an available date, in the event that the court does not modify the schedule. And we again state that we would be willing to depose Mr. Montgomery in a place convenient for him Miami, Washington, or D.C. In that regard, you wrote on July 16 that you would be willing to offer him to be deposed any day from September 1 through September 11, and you also offered going into the following week for his deposition. If September 12 or 13 (a Saturday and Sunday) would be more convenient, then that would be fine for us, too.

We stress, however, that if the court extends the deadlines, then we will likely seek to depose him at a later time to provide time for Judge Goodman to rule on your objections and, if he orders production of the software and related information, for us and our expert to review it before deposing him.

Please let us know by August 19 whether you will hold September 11 (or a date thereabouts) open for his deposition. If not, we will seek to raise this issue with Judge Goodman on August 27.

Regards,

Brian Toth | Holland & Knight Associate Holland & Knight LLP 701 Brickell Avenue, Suite 3300 | Miami, FL 33131 Phone 305.789.7510 | Fax 305.789.7799 brian.toth@hklaw.com | www.hklaw.com________________________________________________ Add to address book | View professional biographyFrom: Larry Klayman [mailto:leklayman@gmail.com]Sent: Thursday, August 13, 2015 9:55 AM To: Toth, Brian W (MIA - X27510) Cc: Dina James; Laura Handman; Bohrer, Sandy (MIA - X27678); MicahRatner@dwt.com Subject: Re: Montgomery v. Risen -- motion to modify the scheduling order

Please attach this email to any motion you may file to fully and appropriately describe our opposition to your attempts to delay this case for the court. Larry Klayman On Aug 13, 2015 6:29 AM, "Larry Klayman" wrote: Ladies and Gentlemen Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 3 of 5 Case 1:15-cv-20782-JEM Document 102-1 Entered on FLSD Docket 08/14/2015 Page 3 of 53We oppose your proposed modification of the pretrial and trial deadlines.It is also inappropriate to not take plaintiff's deposition and attempt to reset it at this late date after he and his counsel have arranged their schedules and made plans at great expense and time and agreed with you on the date. In the unlikely event you prevail on any motion to compel and we plan on filing one as well there is plenty of time to undertake further discovery within the parameters of the current and in effect discovery deadline. Accordingly your suggested modification is just your latest attempt to delay adjudication of this case attempting to take advantage of plaintiff's serious and severely debilitating and potentially fatal brain anneurism and related illnesses. Previously you tactically attempted to stay all discovery to delay not just discovery butthe trial date. The judge made it clear that he wants the case to proceed expeditiously and we intend to do so. We therefore look forward to producing plaintiff for deposition In Miami in defendants' counsels offices at the previously agreed time on August 20 and will strenuously oppose your proposed modification of the pretrial and trial schedule. Please govern yourselves accordingly. Larry Klayman Counsel for Plaintiff On Aug 12, 2015 12:40 PM, wrote: Mr. Klayman,

Because we are at a discovery impasse with Plaintiffs written objections and production, and because we will not have resolution thereof until at least August 27, it is now apparent that we will need to seek the modification of Judge Martinezs scheduling order to extend the discovery-completion date and, with it, the dates that follow.

We propose the following:

All discovery to be completed by November 20, 2015. All dispositive motions to be filed by December 4, 2015. Calendar call to be held on April 5, 2016, for the two-week trial period beginning April 18, 2016.

Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 4 of 5 Case 1:15-cv-20782-JEM Document 102-1 Entered on FLSD Docket 08/14/2015 Page 4 of 54These are modest modifications, and would put the remainder of this case comfortably within the standard track described in the Local Rules.

Finally, again because we have not had resolution on the written objections and production, we will be adjourning Mr. Montgomerys deposition until a later date. We ask that you please hold September 11 for his deposition (if the court does not extend the deadlines). But if the court does extend the deadlines, then we will likely schedule Mr. Montgomerys deposition for a later date -- after he produces the software and our expert has an opportunity to analyze it.

Please let us know by noon tomorrow whether you oppose any or all of the relief sought.

Regards,

Brian Toth | Holland & Knight Associate Holland & Knight LLP 701 Brickell Avenue, Suite 3300 | Miami, FL 33131 Phone 305.789.7510 | Fax 305.789.7799 brian.toth@hklaw.com | www.hklaw.com________________________________________________ Add to address book | View professional biography

NOTE: This e-mail is from a law firm, Holland & Knight LLP (H&K), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality. Case 1:15-cv-20782-JEM Document 100-1 Entered on FLSD Docket 08/14/2015 Page 5 of 5 Case 1:15-cv-20782-JEM Document 102-1 Entered on FLSD Docket 08/14/2015 Page 5 of 5 Exhibit 2 Case 1:15-cv-20782-JEM Document 102-2 Entered on FLSD Docket 08/14/2015 Page 1 of 28/14/2015 GmailFwd:RE:Montgomeryv.Risenmotiontomodifytheschedulingorderhttps://mail.google.com/mail/u/1/?ui=2&ik=e027b36078&view=pt&search=inbox&msg=14f2e7e2a621a29d&siml=14f2e7e2a621a29d 1/5Fwd:RE:Montgomeryv.RisenmotiontomodifytheschedulingorderForwardedmessageFrom:Date:Aug14,20152:54PMSubject:RE:Montgomeryv.RisenmotiontomodifytheschedulingorderTo:Cc:,,,

Mr.Klayman,UnlessJudgeMartinezordersotherwise,Defendants,inlightofyourposition,willbemovingforwardwithMr.MontgomerysdepositioninMiamionAugust20.Defendants,however,retainallrightstoseekanadditionaldepositionofMr.MontgomeryonalloranyinformationthatMr.MontgomeryhasobjectedtoproducingandthatisthesubjectoftheAugust27hearingbeforeJudgeGoodman.Inotherwords,ifJudgeGoodmanordersthatMr.Montgomeryproduceinformationthathehasheretoforeobjectedtoproducing,DefendantsmayseekanadditionaldepositionofMr.Montgomeryonthatinformation.Ifthatoccurs,Defendantswillseekreimbursementofallfeesandexpensesincurredinconnectionwithanyfollowupdeposition.Regards,BrianToth|Holland&KnightAssociateHolland&KnightLLP701BrickellAvenue,Suite3300|Miami,FL33131Phone305.789.7510|Fax305.789.7799brian.toth@hklaw.com|www.hklaw.com________________________________________________Addtoaddressbook|ViewprofessionalbiographyFrom:LarryKlayman[mailto:leklayman@gmail.com]Sent:Thursday,August13,20156:52PMTo:Toth,BrianW(MIAX27510)Case 1:15-cv-20782-JEM Document 102-2 Entered on FLSD Docket 08/14/2015 Page 2 of 2