Montgomery v. Etreppid Techs.

1

DENNIS MONTGOMERY, et al., Plaintiffs, v. ETREPPID TECHNOLOGIES, et al., Defendants.

No. 3:06-cv-00056-MMD-CSD

United States District Court, D. Nevada

August 4, 2023

ORDER

MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE

I. SUMMARY

Non-party and proposed intervenor Michael J. Lindell filed a motion to intervene and lift the Court's protective order (ECF No 1216)^[1] in this closed case^[2] because the information he needs to defend himself in an unrelated District of Columbia defamation case may be covered by the protective order (ECF No. 253). Plaintiff Dennis Montgomery, who was subpoenaed in the defamation case, subsequently filed a motion to restrict application of the state secrets privilege (ECF No. 1236)^[3] because the information he is compelled to produce under the subpoena may be covered by the protective order. Before the Court are the Reports and Recommendations (“R&Rs”) of United States Magistrate Judge Craig S. Denney (ECF Nos. 1254, 1255), recommending that the Court deny both motions. Montgomery^[4] objected to Judge Denney's second R&R.^[5] (ECF No. 1256 (“Objection”).) Because the Court agrees with Judge Denney's analysis, and for the reasons stated below, the Court will adopt Judge Denney's R&Rs in full, overrule Montgomery's Objection, and deny both motions.^[6]

II. DISCUSSION

To start, the Court will adopt Judge Denney's first R&R and deny Lindell's motion to intervene and lift the protective order because he lacks Article III standing for the requested relief. The Court will then adopt Judge Denney's second R&R over Montgomery's Objection because the scope of the protective order is abundantly clear from the plain language, Montgomery's requested relief is unrelated to the protective order, the outrageous government conduct doctrine is inapplicable in this civil case, and Montgomery lacks standing for his requested relief.

A. Lindell's Motion to Intervene & Lift Protective Order

Because Lindell did not object to the R&R, the Court is satisfied that Judge Denney did not clearly err in finding that Lindell lacks standing to intervene.^[7] (ECF No. 1254 at 89.) As a proposed intervenor, Lindell must demonstrate independent Article III standing because he is seeking to lift the protective order, which is a different relief than that sought by the existing parties in this case.^[8] See Or. Prescription Drug Monitoring Program v. U.S. Drug Enf't Admin., 860 F.3d 1228, 1234 (9th Cir. 2017) (explaining that if the Intervenors “seek to obtain different relief than the original plaintiff, the Intervenors must establish independent Article III standing”); Cal. Dep't of Toxic Substances Control v. Jim Dobbas, Inc., 54 F. 4th 1078, 1085 (9th Cir. 2022) (explaining that “[i]ntervenors that seek relief that is broader than or different from the relief sought by existing parties to the case must possess constitutional standing . . . but intervenors that seek the same relief sought by at least one existing party to the case need not do so”) (citations omitted).

But Lindell has not demonstrated an injury in fact that is traceable to the protective order. See Jim Dobbas, 54 F. 4th at 1085 (To have standing, a proposed intervenor must demonstrate an injury in fact “that is concrete and actual or imminent, not conjectural or hypothetical,” “a fairly traceable connection between [their threatened] injury and the relief sought," and a likelihood that the requested relief will redress the injury) (citations and quotation marks omitted). There is no question that the protective order does not apply to non-party Lindell or any litigation other than the eTreppid case.^[9] (ECF No. 253.) The plain language of the order clearly and unambiguously states that it only binds the parties in the eTreppid lawsuit and the proceedings in the eTreppid case.^[10] (Id. at 2.) Hence, the protective order has no bearing on Lindell's ability to defend himself in an unrelated defamation lawsuit in another district, and Lindell has failed to demonstrate an injury in fact for standing.^[11] See id. The Court therefore adopts Judge Denney's first R&R (ECF No. 1254) and denies Lindell's motion to intervene (ECF No. 1216).

B. Montgomery's Motion to Restrict Application

Montgomery objects to Judge Denney's recommendation that the motion to restrict should be denied.^[12] (ECF Nos. 1255, 1256.) Montgomery specifically contends that (1) Judge Denney failed to acknowledge the United States' concession that the protective order only applies to the eTreppid case, (2) he is not requesting a modification of the protective order but rather a court declaration of its scope,^[13] (3) the outrageous government conduct in this case warrants injunctive relief whether it occurred in a criminal or civil case, and (4) he is not required to wait for injury to occur because the threatened harm is “part of a pattern of conduct that is likely to recur.”^[14] (ECF No. 1256 at 2-8.) For the reasons stated below, the Court agrees with Judge Denney's recommendation and overrules Montgomery's Objection.

For Montgomery's first two objections, the Court finds that a separate order declaring the protective order's scope is unwarranted and redundant. As Montgomery himself noted, the United States has repeatedly represented that “the Protective Order entered in this case has nothing to do with the defamation litigation against Lindell,” and “the Protective Order does not apply to any litigation” but the eTreppid case. (ECF Nos. 1243 at 3, 1263 at 6.) Moreover, as previously discussed, the plain language of the protective order clearly and unambiguously states that the order does not extend to any other litigation. (ECF No. 253.) Accordingly, the Court denies Montgomery's request because an order repeating what is already apparent from the protective order is unnecessary.

Next, the Court overrules Montgomery's third objection because the outrageous government conduct doctrine is indeed limited to extreme criminal cases where a defendant can demonstrate that the government's conduct “violates due process in such a way that it is so grossly shocking and so outrageous as to violate the universal sense of justice.” U.S. v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011) (citations and quotation marks omitted); see also U.S. v. Wiley, 794 F.2d 514, 515 (9th Cir. 1986) (“We may dismiss a criminal indictment when government conduct is so outrageous that it violates due process”) (citations omitted). Accordingly, outrageous government conduct may not serve as the basis for injunctive relief in this civil case.

Moreover, Montgomery's requested relief is wholly unrelated to the protective order.^[15] The protective order pertains to the disclosure or discovery of sensitive information that may jeopardize national security.^[16] (ECF Nos. 253, 1243 at 4-5.) However, Montgomery's requested relief is broadly premised on the government's “unlawful surveillance of U.S. citizens” and past “outrageous treatment of Montgomery” including raiding his home and storage units, threatening him with arrest, and seizing records from his attorneys. (ECF No. 1236 at 9, 11-13.) The connection between the terms of the protective order and Montgomery's basis for his requested relief is nonexistent or tenuous at best. Accordingly, Montgomery may not attempt to obtain unrelated relief in a dormant lawsuit that was resolved over 14 years ago. (ECF No. 962.)

Finally, the Court overrules Montgomery's fourth objection because he fails to show a “certainly impending” injury for standing. A plaintiff “must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (citations omitted). A plaintiff “who has standing to seek damages for a past injury . . . does not necessarily have standing to seek prospective relief.” Phillips v. U.S. Customs & Border Prot., __ F. 4th __, 2023 WL 4673472, at *4 (9th Cir. 2023) (citation omitted). “To the extent a plaintiff seeks relief for a possible future injury, that injury must be certainly impending . . . or there must be a substantial risk that the harm will occur.” Id. (citations and quotation marks omitted). Here, Montgomery asks the Court to restrict or prohibit the application of the state secrets privilege due to alleged outrageous conduct by the government that occurred over a decade ago.^[17] (ECF No. 1236 at 11-13.)

However, there is no indication or evidence that the United States will take any action against Montgomery for complying with Lindell's subpoena in the unrelated defamation case. See id. The United States correctly contend that Montgomery's fear of adverse government action is speculative at best-and fails to meet the high “certainly impending” standard for injury. (ECF No. 1263 at 14-15.) See id. The eTreppid case has been closed for over 14 years and the United States has already repeatedly confirmed that the protective order does not apply to any other litigation but this already-resolved, dormant case. (ECF Nos. 1243 at 3, 1263 at 6.) Montgomery therefore lacks standing for his requested relief and his motion is also denied on this basis. See Laidlaw, 528 U.S. at 185 (citations omitted).

III. CONCLUSION

The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the motions before the Court.

It is therefore ordered that Montgomery's objection (ECF No. 1256) to the Report and Recommendation (ECF No. 1255) of United States Magistrate Judge Craig S. Denney is overruled.

It is further ordered that Judge Denney's Reports and Recommendations (ECF Nos. 1254, 1255) are accepted...