Case 1:13-cv-00825-ABJ Document 73 Filed 10/15/15 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GILBERTE JILL KELLEY, et al.,
Plaintiffs,
v.
THE FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.

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Civil Action No. 13-cv-825 (ABJ)

 

DEFENDANT FBI’S MOTION FOR A PROTECTIVE ORDER
Defendant the Federal Bureau of Investigation (“FBI” or “the Bureau”), by and through
undersigned counsel, and pursuant to Federal Rules of Civil Procedure 30(d)(3) and 26(c),
respectfully moves the Court for a protective order:
(a) Limiting the September 2, 2015, deposition of FBI Supervisory Special Agent
Adam Malone (to the extent the deposition remains open and continued) on
the Rule 30(d)(3) ground that certain portions of the deposition were
“conducted in bad faith or in a manner that unreasonably annoys, embarrasses,
or oppresses” the witness or the FBI pursuant to Fed. R. Civ. P. 30(d)(3); and
(b) Restricting, pursuant to Rule 26(c), any further FBI-related discovery to the
discovery of (1) facts sufficient to show disclosure(s) to the media by one or
more FBI employees in a manner violating the Privacy Act, and (2) facts
relating to the governments’ defenses to the plaintiffs’ remaining claims.
Co-defendant the Department of Defense (“DoD”) concurs with the motion. Pursuant to Local
Civil Rule 7(m), counsel for defendants have met and conferred with counsel for plaintiffs.
Plaintiffs oppose this motion.
For the reasons stated in the accompanying Statement of Points and Authorities and the
FBI’s proposed Under Seal Supplement, the Court should grant the instant motion.

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Dated: October 14, 2015

Respectfully Submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
JOHN R. TYLER
Assistant Branch Director
/s/ Lisa Zeidner Marcus
PETER J. PHIPPS (DC Bar #502904)
LISA ZEIDNER MARCUS (NY Bar)
STEPHEN J. BUCKINGHAM (MD Bar)
U.S. Department of Justice, Civil Division
Tel: (202) 514-3336
Fax: (202) 616-8470
Email: lisa.marcus@usdoj.gov
P.O. Box 883 Ben Franklin Station
Washington, DC 20530
Counsel for Defendants

2 
 

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STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT FBI’S MOTION FOR A PROTECTIVE ORDER
TABLE OF CONTENTS
I.  Introduction.............................................................................................................................1 
II.  Background .............................................................................................................................3 
A.  Discovery Conducted Prior to the Malone Deposition......................................................3 
B.  Plaintiffs’ Deposition of SSA Malone ...............................................................................9 
III.  Discussion:
The Court should issue a protective order limiting FBI-related discovery .....................14 
A.  To the extent the deposition of SSA Malone remains open, the Court
should uphold defense counsel’s instructions not to answer certain
questions, and should grant FBI’s motion for a protective order
pursuant to federal rule of civil procedure 30(d)(3). .......................................................14 
B.  The Court should also grant FBI’s motion for a protective order
pursuant to Federal rule of Civil Procedure 26(c). ..........................................................19 
IV.  Conclusion .............................................................................................................................21 

EXHIBITS
Ex. A ...... Email from Jake Tapper, reporter for CNN, to Paul Bresson, Unit Chief,
FBI National Press Office, April 19, 2015 at 6:20pm
Ex. B ...... Jake Tapper, “FBI agent testifies in Paula Broadwell cyberstalking case,”
CNN.com (April 20, 2015)
Ex. C ...... Josh Gerstein, “FBI agent in sworn deposition: Petraeus lover accessed his
emails,” Politico (April 23, 2015)
Ex. D ...... “FBI agent’s testimony bolsters Jill Kelley’s claims in defamation case,”
Tampa Bay Times (April 20, 2015)
Ex. E....... Ted Bridis and Eric Tucker, “Reporters face subpoena in case over CIA
head’s resignation,” Associated Press (Sept. 2, 2015)
Ex. F ....... Excerpted portions of SSA Adam Malone Deposition Transcript
Ex. G ...... Email from Jill Kelley, June 2, 2013
Ex. H ...... Email from Jill Kelley, Nov. 21, 2013
i
 

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Ex. I ........ From Petraeus Scandal, an Apostle for Privacy,” New York Times, Jan. 5,
2014
FBI also submits, in connection with this filing, a supplemental filing containing
information that cannot at this time be produced on the public record, along with a motion for
leave to file the supplement under seal. See infra, 3 n.1. See also Dkt. # 74 (FBI motion for
leave to file under-seal supplement).

ii
 

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I.

INTRODUCTION
On September 2, 2015, plaintiffs deposed FBI Special Supervisory Agent Adam Malone.

SSA Malone is a Supervisory Special Agent on a cyber squad in the FBI field office in
Knoxville, Tennessee. His duties there include oversight of investigations to combat cyber-based
attacks and high-technology crimes threatening the United States and our citizens. During the
time period relevant to the remaining claim in this case, SSA Malone had been stationed in
Tampa, FL, and he served as lead agent on the investigation that began when plaintiffs reported
to the FBI allegations of potential cyber stalking. The FBI agreed to make SSA Malone
available in Washington, DC, and paid for him to fly from Knoxville to Washington, to attend the
deposition. At the deposition, rather than probe SSA Malone on issues germane to the sole
extant claim in this case, i.e. potentially unlawful disclosures to the media of Privacy-Actprotected information, plaintiffs instead proceeded in a manner designed to annoy, embarrass,
and harass SSA Malone and the Bureau. Among other things, plaintiffs questioned FBI’s
investigative tactics, and they fished for facts to support an unsubstantiated theory that SSA
Malone and other FBI agents conducted their investigation for lascivious or other improper
motives. The Federal Rules protect witnesses from facing the harassing, embarrassing, and
annoying conduct that SSA Malone faced. Pursuant to those rules, defendants seek an order of
the Court protecting SSA Malone and the FBI from these or other improper lines of questioning,
to the extent that his September 2, 2015, remains open and continued.
Beyond the fact that plaintiffs questioned SSA Malone in a manner designed to annoy,
harass, and embarrass him and the Bureau, plaintiffs’ topics of inquiry also strayed well outside
the appropriate scope of discovery. Plaintiffs are not entitled in this Privacy Act litigation to
discover facts either (a) relating solely to their dismissed claims and not to their extant claim, or
(b) revealing the methods, timing, or strategy by which the Federal Bureau of Investigation (the
1
 

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“FBI” or “the Bureau”) — after receiving Jill Kelley’s report of suspicious emails — conducted
its criminal investigation into potential cyber-stalking and related violations. Plaintiffs’
persistent and focused attempts to obtain discovery relating to these topics, including in
particular plaintiffs’ recent deposition questioning of SSA Malone, have reached a level
indicating improper use of the discovery system. Therefore, pursuant to Federal Rules of Civil
Procedure 30(d)(3) and 26(c), defendant FBI respectfully moves the Court for a protective order
(1) limiting the deposition of SSA Malone on the ground that certain portions of the deposition
were “conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or
oppresses” the witness or the Bureau, see Fed. R. Civ. P. 30(d)(3), and (2) restricting pursuant to
Rule 26(c) any outstanding discovery of or related to the FBI to certain facts, namely: (a) facts
sufficient to show disclosure(s) to the media by one or more FBI employees in a manner
violating the Privacy Act, and (b) facts relating to the government’s defenses to plaintiffs’
remaining claims.
Although the permissible scope of discovery under the Federal Rules of Civil Procedure
is broad, it is not unlimited. See Fed. R. Civ. P. 26(b). A party may not interpose discovery for
any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost
of litigation. See, e.g., id. 26(g)(1)(B)(ii). As Rule 1 of the Federal Rules of Civil Procedure
makes clear, the discovery rules (as well as the rest of Rules) are to be construed and used so as
to “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.
R. Civ. P. 1. To allow a party to pursue discovery on claims that have been dismissed, or on
topics unrelated to the litigation, would be inconsistent with the purpose and instructions of the
Federal Rules. As multiple other courts have observed, “‘[r]unaway’ discovery that has little
relevance to the case and is ‘excessive, burdensome, unnecessary, and intrusive’ justifies
resorting to court intervention” and the issuance of a protective order. Webb v. CBS Broad., Inc.,
2
 

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No. 08 C 6241, 2011 WL 111615, at *6 (N.D. Ill. Jan. 13, 2011) (quoting Eggleston v. Chicago
Journeymen Plumbers’ Local Union No. 130, U. A., 657 F.2d 890, 901 (7th Cir. 1981)); see also
8A Charles Alan Wright, et al., Federal Practice and Procedure § 2116 (3d ed.) (“The
requirement for [a Rule 30(d)(3) protective] order has been held satisfied on a showing ... that
the examination has gone too far afield.”).
As discussed below and in defendants’ proposed under-seal supplement to the instant
motion,1 plaintiffs’ discovery of the FBI in this Privacy Act unlawful disclosure case has “gone
too far afield.” See id. The Court should not permit plaintiffs to further probe details of the
FBI’s criminal cyber-stalking investigation prompted by plaintiffs’ complaint to the FBI. The
details plaintiffs seek to discover lack relevance or a reasonable likelihood of leading to the
discovery of admissible evidence in this Privacy Act unlawful-disclosure-to-the-media case. The
Court should grant the FBI’s motion and issue a protective order limiting plaintiffs’ FBI-related
discovery.
II.

BACKGROUND
A.

Discovery Conducted Prior to the Malone Deposition

Prior to the start of discovery, the Court narrowed the scope of this case. Specifically, on
September 15, 2014, this Court ruled on the government’s motion to dismiss plaintiffs’ amended
complaint, denying in part and granting in part that motion. Mem. Op., Dkt. # 46. The Court
denied the motion with respect to a portion of Count 1 regarding plaintiffs’ claims for unlawful
                                                            
1

Defendant FBI is submitting, in connection with the instant motion, a supplemental filing
containing information that cannot at this time be produced on the public record; such
information has been designated by a party or third party as “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER,” pursuant to the Amended Protective Order issued by the Court (Dkt.
# 65). The supplemental filing provides additional context, background, and reasons for the
Court to issue the requested protective order. FBI endeavors, however, to explain as much as
can be stated publicly in this brief, which on its own provides a sufficient and strong basis for the
Court to grant FBI’s motion for a protective order.
3
 

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disclosure(s) by FBI and/or DoD of information about plaintiffs to the media in violation of
section 552a(g)(1)(D) of the Privacy Act, see id. 3, 23-25, 76. The Court granted the motion
with respect to the following claims by plaintiffs,2 which the Court dismissed:


Alleged unauthorized disclosure(s) by FBI to DoD of records regarding the
plaintiffs (part of Count 1);



Alleged failures by FBI and DoD to maintain in their records only such
information as relevant and necessary to accomplish a purpose of the agency
(Count 2);



Alleged failures by FBI and DoD to maintain records about the plaintiffs with
such accuracy, relevance, timeliness, and completeness as was necessary to
assure fairness (Count 3);



The alleged, improper maintenance by FBI and DoD of records describing
plaintiffs’ exercise of their First Amendment rights (Count 4);



Alleged failures by FBI, DoD, and then-defendant the Department of State to
make reasonable efforts to assure records are accurate, complete, and relevant
for agency purposes prior to dissemination (Count 5);



Alleged failure by FBI and DoD to establish appropriate safeguards to ensure
the security and confidentiality of records which resulted in substantial harm
and embarrassment (Count 6);



Alleged violations by the United States of the Stored Communications Act, 18
U.S.C. § 2707(g), which prohibits disclosure of electronic communications
obtained by the government through compulsion from a third-party service
provider where such disclosure is not made in the proper performance of
official functions (Count 7);



Alleged violation of the notice provision contained in section 2703(b) of the
Stored Communications Act, which requires prior notice in certain
circumstances to customers or subscribers whose electronic communications
will be obtained (Count 8);



Bivens claims against then-defendants Sean Joyce, former FBI Deputy
Director; Steve Ibison, former Special Agent in Charge of the FBI’s Tampa
Division; and SSA Malone (all sued in their individual capacities) alleging

                                                            
2

The dismissed claims of plaintiffs’ Amended Complaint are briefly summarized here. For a
more detailed description, see the list included on pages 9 to 10 of the Court’s Memorandum
Opinion, Dkt. # 46, and plaintiffs’ Amended Complaint, Dkt. # 19.
4
 

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they violated plaintiffs’ Fourth Amendment rights against unreasonable
searches and seizures (Count 9);


Bivens claims against then-defendants Sean Joyce, Steve Ibison, and SSA
Malone (all sued in their individual capacities), alleging they violated
plaintiffs’ Fifth Amendment rights to due process, including equal protection
under the law (Count 10);



Claims alleging common-law tort of defamation by then-defendants Leon
Panetta, former Secretary of Defense; and George Little, former Deputy
Assistant Secretary of Defense for Public Affairs and the Pentagon Press
Secretary (both sued in their individual capacities) (Count 11);



Claims alleging common-law tort of false light by then-defendants Leon
Panetta and George Little (both sued in their individual capacities) (Count
12);



Claims alleging common-law tort of intrusion upon seclusion by thendefendants Sean Joyce, Steve Ibison, and SSA Malone (all sued in their
individual capacities) (Count 13); and



Claims alleging common-law tort of publication of private facts by thendefendants Leon Panetta and George Little (both sued in their individual
capacities) (Count 14).

See id. 9-10, 76; Amended Compl. ¶¶ 113-225. The Court observed: “Whether plaintiffs will be
able to prove the remaining [Privacy Act unlawful-disclosure] claims is a question for another
day, but for now, the case will proceed, albeit on a considerably more streamlined basis.” Id. at
4. (emphasis added).
Discovery began in November 2014 and is currently scheduled to generally close
November 13, 2015. See Minute Order, Oct. 7, 2015. It has not proceeded on a particularly
“streamlined basis.” Cf. Mem. Op., Dkt. # 46, at 4. During the course of discovery, plaintiffs
have interposed numerous interrogatories and requests for documents, including some such as
the following requests seeking broad amounts of information regarding either the FBI criminal
investigation that preceded General Petraeus’ resignation as Director of the Central Intelligence
Agency (“CIA”) or facts relevant to dismissed claims:
5
 

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

“[Produce] All Documents related or created in response to or as a result of
the cyberstalking report filed by the Kelleys in the Tampa, Florida FBI Field
Office in June 2012 (‘Kelley Cyberstalking Report’).” (Plaintiffs’ Request for
Production 3);



“[Produce] All ... Documents during the relevant time period evidencing all
internal and external communications ... relating to ... the Kelley
Cyberstalking Report, including, but not limited to, any investigation or
inquiry regarding ... Paula Broadwell, General (Ret.) David Petraeus, General
John Allen, ... and/or the allegations raised in the Kelleys’ Amended
Complaint.” (Plaintiffs’ Request for Production 4);



“Provide a detailed timeline of the transfer of materials regarding the Allen
matter [defined by plaintiffs as ‘refer[ing] to the matter concerning
communications between General John Allen and Jill Kelley’] to DoD,
including discussions around how to proceed with the Allen matter, and
identification of all individuals involved in 1) the decision to transfer these
materials to DoD and 2) the actual physical transfer itself.” (Plaintiffs’
Interrogatory 7; cf. the dismissed portion of plaintiffs’ Count 1).

Recognizing the broad scope of permissible discovery under Rule 26, FBI produced in
response to plaintiffs’ requests, among other things, significant portions of FBI criminal
investigative case file # 288A-TP-74641, the file opened in response to Jill Kelley’s report of
suspicious emails.3
Plaintiffs conducted their first deposition of an FBI employee on March 20, 2015;
plaintiffs deposed Special Agent Frederick Humphries, who testified that he was “social friends
with the Kelley family” and considered himself “friends with Jill Kelley.” Humphries Tr. 71:3-5.
During the deposition, plaintiffs elicited testimony with no apparent relevance to the remaining
Privacy Act unlawful-disclosure claim, nor with any likelihood of leading to the discovery of

                                                            
3

Documents from criminal case file # 288A-TP-74641 were produced to plaintiffs on May
15, 2015, and were produced as “CONFIDENTIAL - SUBJECT TO THE PROTECTIVE
ORDER” pursuant to the Protective Order. A copy of the as-produced set of investigative-file
documents is being provided to the Court with FBI’s [Proposed] Under Seal Supplemental Filing
in Support of Motion for Protective Order.
6
 

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admissible evidence.4 Indeed, plaintiffs primarily questioned SA Humphries’ about facts that
bore no apparent relevance to a claim of unlawful disclosure of information to the media. The
deposition focused instead on the conduct of the FBI’s criminal investigation, and SA
Humphries’ speculation regarding the same.5 Plaintiffs’ counsel focused on seemingly
sensational details, such as SA Humphries’ suspicion that election-cycle politics had impacted
the course of the cyberstalking investigation, and his recollection of a potentially lewd remark
made by an unnamed FBI agent. Within days after the parties (both plaintiffs and defendants)
designated certain portions of the Humphries’ deposition transcript as “CONFIDENTIAL SUBJECT TO THE PROTECTIVE ORDER,” a redacted copy of the transcript was provided to
the media.6 See Ex. A (email from reporter for CNN, to the unit chief of the FBI National Press
Office, indicating that CNN had received a copy of the deposition transcript and seeking a
response from the FBI); Ex. B (news report stating that CNN obtained a “redacted copy” of the
transcript). Several news articles were published regarding the Humphries deposition,
highlighting various details that had been described by SA Humphries in response to questioning
by plaintiffs’ counsel. See, e.g., Jake Tapper, “FBI agent testifies in Paula Broadwell
                                                            
4

SA Humphries described the conduct of the criminal cyberstalking investigation in June
2012 and throughout that summer, months before any disclosures of information to the media are
alleged to have occurred. Id. 41:2-11; 100:22-101:5.
5

SA Humphries testified that he never served as an investigator on the FBI’s cyberstalking
case, Humphries Tr. 140:09-12; that he did not know the predicate for establishing cyberstalking,
id. 82:18-19; that his only involvement, limited to June 2012, was as “liaison” to certain
witnesses he knew socially or because of his work at MacDill Air Force Base, see id. 37:13-19,
39:08-21, 44:24-45:05; and that he “never accessed the official file for that cyberstalking
investigation,” id. 140:13-15. SA Humphries was represented by his own, private attorney at the
deposition; the FBI was represented by Department of Justice counsel. The government’s
counsel interposed numerous objections during the course of the Humphries deposition,
including that plaintiffs’ inquiry lacked foundation and called for speculation. See, e.g., id. 48:5,
52:15, 53:20-21.
6

Defendants do not know who provided this transcript to the media, except they know it was
not provided by either defendant FBI or DoD nor their counsel.
7
 

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cyberstalking case,” CNN.com (April 20, 2015) (attached as Ex. B); Josh Gerstein, “FBI agent in
sworn deposition: Petraeus lover accessed his emails,” Politico (April 23, 2015) (attached as Ex.
C); “FBI agent’s testimony bolsters Jill Kelley’s claims in defamation case,” Tampa Bay Times
(April 20, 2015) (attached as Ex. D).
Plaintiffs conducted their second deposition of an FBI employee on May 1, 2015, the
deposition of SSA Stacy Arruda. As with the Humphries deposition, plaintiffs spent much of the
Arruda deposition attempting to probe details regarding the FBI’s conduct of its criminal cyberstalking investigation, and very little time seeking information that would be reasonably likely to
lead to the discovery of admissible evidence in a Privacy Act unlawful-disclosure-to-the-media
case. Defendants’ counsel objected to multiple questions on the ground that they called for
information protected by the law enforcement privilege. Defendants’ counsel also noted on the
record that plaintiffs were asking questions that were “incredibly far removed and attenuated
from any claim of a ... disclosure in violation of the privacy act,” Arruda Tr. 119:12-15, and that
“[Plaintiffs are] asking about law enforcement techniques and sources. This is privileged, and I
see almost no relevance to an ultimate privacy act disclosure claim. None.” id. 67:20-24.
In July and August, plaintiffs deposed several current and former DoD employees, and
information from those depositions was later provided to the press and reported in news articles
appearing to cast plaintiffs in a favorable light. One story — headlined, “Reporters face
subpoena in case over CIA head’s resignation” — purported to describe testimony given by the
DoD witnesses at these depositions.7 See Ted Bridis and Eric Tucker, “Reporters face
                                                            
7

The story reported false information and characterizations regarding the DoD witness’s
testimony, including that “Pentagon officials acknowledged in depositions that they developed a
‘press plan’ with members of an unspecified delegation from the White House in November
2012 to tell reporters that emails between Allen and Jill Kelley were ‘potentially inappropriate’
and to suggest that the two had a sexual relationship.” See Ex. E. Defendants represent to the
Court that no DoD witness provided such testimony. Defendants do not know the basis for this
8
 

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subpoenas...,” Associated Press (Sept. 2, 2015) (attached at Ex. E). It also described the
plaintiffs’ “legal strategy,” including their plans to subpoena journalists. Id. at 1. The story cited
“a person familiar with the case who spoke on condition of anonymity because the case is under
a judicial gag order,” presumably the Amended Protective Order (Dkt. # 65) entered by this
Court. Id. at 2. Plaintiffs’ Deposition of SSA Malone
Plaintiffs’ third deposition of an FBI witness, the deposition of SSA Malone, occurred on
September 2. During the course of that deposition, counsel for the parties disagreed over a series
of examination questions pursued by plaintiffs’ counsel. This disagreement was first discussed
on the record two hours into the deposition, after plaintiffs’ counsel asked SSA Malone: “[With
respect to the determination that certain emails originated from The Thayer Hotel, located at
West Point Military Academy,] When were you able to make that determination?” Malone
Tr. 71:07-08. Defendants’ counsel objected, and the following colloquy took place:
MS. MARCUS [Counsel for Defendants]:
... The question is outside the scope of Rule 26, not likely to lead to the
discovery of admissible evidence.
Can you please explain, if you disagree, why you think that question is likely
to lead to the discovery of admissible evidence in this Privacy Act case?
MR. NEAL [Counsel for Plaintiffs]:
Yes. Most definitely, I do disagree. The date by which the FBI was able to
identify both location and, ultimately, the identity of the person who was
cyberstalking my client is directly relevant to the subsequent actions undertaken
by the FBI to engage in a far-reaching and, ultimately, impermissible and
unauthorized search of my clients’ emails.
I am setting forward -- setting forth or, at least, laying the foundation for the
predicate of that argument. I’m not asking you to agree or disagree, but that’s the
intent of my questioning. I’ve got a fair number of questions that relate to that.

                                                                                                                                                                                                

reporting, and they are limited in their ability to publicly respond given the “CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER” designation of the original transcripts.
9
 

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MS. MARCUS:
Well, I understand what you just said, but that actually wasn’t my question. I
asked you to please explain why you think that the question is likely to lead to the
discovery of admissible evidence in this Privacy Act case.
MR. NEAL:
I answered your question. Let’s proceed.
MS. MARCUS:
I restate my objection on the basis of relevance. The question is outside of
the scope of Rule 26 and I think also other rules in the 30s on depositions.
I will instruct the witness not to answer, if we need to seek a protective order.
Malone Tr. 71:14-72:23. Counsel continued to dialogue on the record for approximately four
minutes and then agreed to go off the record to try to resolve their differences. See id. 74:04-05.
During the break, counsel for the parties discussed — among other things — Federal Rule of
Civil Procedure 30(d)(3) and defense counsel’s intent to seek, on behalf of the FBI, a protective
order pursuant to that Rule. Counsel for the parties were unable to resolve their substantive
disagreement but they agreed on procedure, as explained by counsel on the record after the
break:
MR. NEAL:
Back on the record. We took a break, which extended into a lunch break,
during which counsel attempted to resolve the DOJ’s objection and specifically its
instruction to the witness not to answer questions about when the FBI suspected,
and later determined, that Paula Broadwell was the cyberstalker of Jill Kelley and
Dr. Scott Kelley.
We were not able to resolve our differences, despite our good faith efforts.
We agreed to limit our argument over the merits, as to which we have very
divergent opinions. I will, however, state that it is my belief that counsel’s
instruction is inappropriate, that it’s inconsistent with Rule 30(d)(1), and the
Advisory Committee Notes.
Federal Rule of Civil Procedure 30(d)(1) forbids a party to instruct a
deponent to refuse to answer a question unless such instruction is necessary to
preserve a privilege, to enforce a limitation on evidence imposed by the Court, or
to permit the making of a motion for a protective order under Rule 30(d)(3).
I have offered to keep the sensitive parts of the transcript under seal, and the
DOJ has taken that matter under advisement. But we were unable to reach an
agreement during the lunch break on a protocol to keep my questions and the
witness’ answers under seal.
10
 

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I debated whether to stop this deposition and reach out either immediately, or
in short order, to the Court with a motion to compel, but I decided to proceed.
The problem I have is, I don’t have just one question for this witness on this
subject matter, I have a series of questions.
In fact, a good chunk of my outline relates to when the FBI discovered the
identity of the cyberstalker and why they [took particular law enforcement
actions] after they made such a determination. Of course, my question may yield
answers to allow me to explore other relevant areas in this case.
I am mindful that the witness is a busy professional, who flew in from
Tennessee to be deposed today. I will proceed, reluctantly, to do two things:
One, to make my record by continuing with my line of questioning on this subject
matter until, as a practical matter, it makes no sense for me to go further, in the
face of the DOJ instructing the witness not to answer my questions, and, two, to
question the witness about matters unrelated to this cyberstalker issue.
... .
MS. MARCUS:
Thank you, Mr. Neal, for that description of our conversation and your views.
Thank you also for what I view -- what I view to be productive conversation
during the lunch break.
I think it’s my understanding that our plan generally today is to proceed with
this deposition, that you will ask the questions that you intend to ask of this
witness.
I will state, as necessary, any objections I have for the record. I will, as
necessary and consistent with the Federal Rules of Civil Procedure, instruct the
witness not to answer questions that seek privilege[d] information or questions
that pertain to our anticipated motion for a protective order.
With respect to the suggestion that we agree to ... seek a more restricted use
and dissemination provision or provisions for portions of this deposition, I
confirm that Mr. Neal and I discussed that idea during the lunch break, and that it
is a matter that I and my colleagues, representing the defendants, are taking under
advisement at this time.
I will note that there is currently a protective order in this case ... docket
number, Document 65. That’s the amended protective order. That protective order
is generally applicable ... [i]n discovery[;] it contains provisions for identifying
and designating information as confidential, subject to the protective order.
The idea that Mr. Neal raised was to have some more -- even more restricted
... set [of] protocol[s] on use or dissemination for portions of the testimony, which
is something that we will consider ... [I]t may not be necessary, and, ultimately ...
the idea may not address the concern of making sure that the proceeding is within
the scope of the discovery rules, which are broad, but have limits as to the scope
of discovery -- permissible discovery.
...
Again, I thank Mr. Neal and Ms. Manoranjan, his colleague, who is here, for
our professional and productive dialogue. And I think, collectively, we will
attempt to build a record here so that if either side needs to present anything to the
11
 

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Court, the scope of our discovery dispute will be as limited as possible and as
clear as possible.
Id. 74:18-79:24.
The deposition proceeded. In response to multiple questions posed by plaintiffs’ counsel,
defendants’ counsel stated a relevance objection on the record but allowed the witness to answer.
In response to other questions, defendants’ counsel instructed the witness not to answer because
the questions were covered by the FBI’s intended Rule 30(d)(3) motion for a protective order.
Those questions — many of which were essentially the same question asked in different ways —
included the following:8


Related question, sir. How much longer after June 14th, 2012, did you
make a determination that the four emails set forth on Bates number 185
originated from The Thayer hotel? (Id. 91:09-12.)



When did you first suspect that Paula Broadwell was the author of the
cyberstalking emails? (Id. 93:05-06.)



When did you suspect that Paula Broadwell was the author of the
cyberstalking emails? (Id. 96:19-20.)



When did you believe that Paula Broadwell was the author of the
cyberstalking emails? (Id. 96:24-25.)



When did you determine that Paula Broadwell was the author of the
cyberstalking emails? (Id. 97:04-05.)



When did you first learn that individuals, other than Jill Kelley and Dr.
Scott Kelley, were receiving harassing emails from either Tampa.Angel
or Kelley Patrol? (Id. 101:10-13.)



How did the FBI identify Paula Broadwell as being responsible? (Id.
109:19-20.)



The suspect of the Jill and Dr. Scott Kelley cyberstalking complaint was
identified by the FBI by June 27th, 2012, correct? (Id. 110:06-08.)

                                                            
8

The FBI lists on its supplemental filing the other questions for which defendants’ counsel
instructed the witness not to answer based on the FBI’s anticipated motion for a protective order;
those questions are not listed here because they reference information that has been designated
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER.”
12
 

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

Agent Malone, you had your man -- or, in this case, your woman -- as of
June 27th, 2012, correct? (Id. 110:13-15.)



Did you believe as of June 27th, 2012, that there were any additional
suspects who were behind the dissemination of the cyberstalking emails
complained about by Jill Kelley and Dr. Scott Kelley? (Id. 110:19-22.)



And between -- is it fair to say that, sir, between June 13th and June 27th,
at some point within that two-week window, the FBI identified Paula
Broadwell as the sender of the cyberstalking emails? (Id. 114:02-05.)



What steps did you take between June 23rd and June 27th of 2012 to
obtain that affirmative proof that Ms. Broadwell was the author of the
cyberstalking emails to Jill Kelley and Dr. Scott Kelley? (Id. 115:13-16.)



Did you attempt to confront Ms. Broadwell about your suspicions that
she was the author of the cyberstalking emails between the period of June
13th, 2012, and June 27th, 2012? (Id. 115:22-25.)



Between June 13th, 2012, and June 27th, 2012, did you make an effort to
contact Ms. Broadwell to tell her to stop sending the cyberstalking emails
to Jill Kelley and Dr. Scott Kelley? (Id. 116:06-09)



Between June 13th, 2012, and June 27th, 2012, did you make any effort to
interview Ms. Broadwell about the cyberstalking emails to Jill Kelley and
Dr. Scott Kelley? (Id. 116:14-17.)



Did you make that request before or after you identified Paula Broadwell
as the author of the cyberstalking emails? (Id. 123:04-06.)



[With regard to the prior question, which had asked: “I will repeat the
question. At any point in time, did you suspect that Jill or Dr. Scott Kelley had
committed a crime?] And at what point in time was that? (Id. 131:22.)



What evidence did you have that Ms. Kelley was obstructing justice? (Id.
134:16-17.)



Does the FBI investigate the sex lives of private citizens? (Id. 135:05-06.)

The deposition lasted approximately 4 hours and 40 minutes, not including breaks.
Toward the end of the deposition, after a colloquy between counsel, plaintiffs’ counsel
terminated the deposition. See Ex. F at 19-21.

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III.

DISCUSSION: THE COURT SHOULD ISSUE A PROTECTIVE ORDER
LIMITING FBI-RELATED DISCOVERY
A.

To the extent the deposition of SSA Malone remains open, the Court
should uphold defense counsel’s instructions not to answer certain
questions, and should grant FBI’s motion for a protective order
pursuant to federal rule of civil procedure 30(d)(3).

Federal Rule 30(d)(3) provides that “[a]t any time during a deposition, the deponent or a
party may move to terminate or limit it on the ground that it is being conducted in bad faith or in
a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” The
drafters of the Federal Rules included Rule 30(d)(3) as a “safeguard” on account of the broad
right to discovery generally provided by Rule 26. See Fed. R. Civ. P. 30, advisory committee
notes (1937). A ruling to limit deposition examination pursuant to Rule 30(d)(3) is “in the sound
discretion of the court.” De Wagenknecht v. Stinnes, 243 F.2d 413, 417 (D.C. Cir. 1957); see also
id. 243 F.2d at 417 n.5 (“The power of the court to prevent abuse of its process is very broad ...
during the course of the examination [pursuant to] 30(d).”).
In considering whether to limit a deposition pursuant to Rule 30(d)(3), courts may
properly consider the “repetitiveness and breadth” of questions asked, Tran v. Sonic Indus.
Servs., Inc., No. CIV-10-69-C, 2010 WL 4696272, at *2 (W.D. Okla. Nov. 12, 2010) aff’d, 490
F. App’x 115 (10th Cir. 2012), the discovery that has previously occurred, see, e.g., Mr. Frank,
Inc. v. Waste Mgmt., Inc., No. 80 C 3498, 1983 WL 1859, at *2 (N.D. Ill. July 7, 1983), and
whether the examination is pursued not to further one’s claims or defenses but for an “ulterior
purpose,” see, e.g., Empire Liquor Corp. v. Gibson Distilling Co., 2 F.R.D. 247, 248 (S.D.N.Y.
1941). Courts also distinguish between party and non-party witnesses, allowing “greater
latitude” in the cross-examination of a party and providing greater protection to a non-party
witness. De Wagenknecht, 243 F.2d at 417.

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Here, the Court should exercise its discretion to limit the deposition of SSA Malone, a
non-party witness and former named defendant. Instead of asking SSA Malone — or either of
the other two FBI witnesses plaintiffs have deposed — about any particular alleged disclosure to
the media, any news article, any attribution to a “law enforcement official,” or any conversation
with any reporter,9 the plaintiffs relentlessly inquired about details of the FBI’s criminal
investigation. Information about how and why the FBI collected certain information has no
bearing on the question of whether the FBI subsequently disseminated that information to the
media. Notwithstanding its irrelevance to the remaining Privacy Act claims in this case, the FBI
has already produced a significant amount of discovery on this issue. Plaintiffs’ examination
focused with particular intensity on FBI investigative activity occurring in June 2012, more than
four months before any of the alleged media-disclosures in this case took place. Plaintiffs’ stated
purpose for this inquiry is that: “[t]he date by which the FBI was able to identify both [the]
location and, ultimately, the identity of the person who was cyberstalking [Jill Kelley] is directly
relevant to the subsequent actions undertaken by the FBI to engage in a far-reaching and,
ultimately, impermissible and unauthorized search of my clients’ emails.” Malone Tr. 71:2372:04. But the Court has already dismissed plaintiffs’ multiple claims of investigative
impropriety — including plaintiffs’ Fourth Amendment, Fifth Amendment, and Stored
Communications Act claims — and thus this line of inquiry is not properly directed to legitimate

                                                            
9

Plaintiffs did not ask SSA Malone a single question regarding his interactions or potential
interactions with the media, despite defense counsel’s entreaty that they do so before terminating
the deposition, Ex. F at 19-21, and her statement that FBI would not voluntarily reproduce the
witness, id. at 16.
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factual development. Rather, it appears to be directed to embarrassing and harassing SSA
Malone and the FBI for some purpose unrelated to their remaining claim.10
The justifications attempted by plaintiffs during the course of the deposition for this line
of questioning do not persuade. Plaintiffs’ counsel explained that plaintiffs sought to discover
details of the FBI’s criminal cyber stalking investigation because the manner in which the FBI
conducted that investigation “directly relate[s], to our Privacy Act claim, including whether or
not the ultimate disclosure, the ultimate leaks … was willful and was intentional under the
Privacy Act.” Malone Tr. 137:10-13. But, at least thus far in discovery, plaintiffs have failed to
adduce evidence showing an actual disclosure by the FBI to the media of Privacy-Act-protected
records or information; plaintiffs plainly cannot demonstrate that a disclosure was “willful or
intentional” pursuant to 5 U.S.C. § 552a(g)(4) if no disclosure took place. Even if plaintiffs do
ultimately show an actual FBI disclosure of Privacy-Act-protected information to the media, the
relevance of inquiry into the cyber stalking investigation remains far from obvious. The terms
“intentional” and “willful” in subsection (g)(4) of the Privacy Act “do not have their vernacular
meanings”; rather, they are “terms of art.” See, e.g., White v. OPM, 840 F.2d 85, 87 (D.C. Cir.
1988) (per curiam). How the FBI conducted a criminal investigation months prior to the alleged
disclosures in this case has no bearing on whether any alleged FBI disclosure to the media in
November 2012 was made “without grounds for believing [the disclosure] to be lawful, or by
flagrantly disregarding others’ rights under the [Privacy’] Act.” See id.
Moreover, even if plaintiffs sincerely view their inquiry into the details of the FBI’s cyber
stalking investigation as somehow relevant to their Privacy Act claims, the Court should still
grant the FBI’s Rule 30(d)(3) motion. Plaintiffs’ view of this case may be “sincerely held,” but
                                                            
10

The Court has previously admonished plaintiffs about using the Court’s docket as a means
to facilitate a public relations campaign. See Minute Order (Sept. 24, 2012).
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“the questioning [of SSA Malone] certainly exceeded the limits of the case, and went over the
line in a manner that unreasonably annoyed, embarrassed, or oppressed” the witness and the FBI.
See Webb, 2011 WL 111615 at *6.
The following series of questions illustrates how the examination of SSA Malone reached
the level of harassment of the witness and the FBI:
MR. NEAL:
Does the FBI investigate the sex lives of private citizens?
MS. MARCUS:
Objection, foundation, form, relevance. It’s time to cut this off. This has
nothing to do with the -- to do with -- this question is not likely to lead to
admissible evidence or discovery of anything -- any relevant information.
Beyond that, it’s a broad question and is beyond the scope of Rule 26.
MR. NEAL:
So is it DOJ’s position that whether or not Jill Kelley had sexual relationships
with generals, private citizens -- heck, with all due respect, Ms. Kelley -- all of
Tampa, that that has no relevance whatsoever to the cyberstalking investigation?
MS. MARCUS:
That is not my position, nor is it the DOJ’s position.
MR. NEAL:
Can you explain the basis for why you’re cutting off inquiry on that, if it may
possibly have relevance to this litigation?
MS. MARCUS:
No, that wasn’t your statement. Your statement was whether it has relevance
to the cyberstalking investigation. It may have had relevance to the cyberstalking
investigation. It has no relevance to the Privacy Act case that is pending and for
which we are engaging in discovery.
Id. 135:05-136:05.
Plaintiffs’ previous attempts at far-reaching discovery of the FBI further informs how
plaintiffs’ pursuit of this irrelevant line of inquiry from SSA Malone rises to the level of
annoyance, embarrassment, or harassment. FBI has already produced to plaintiffs a broad
amount of information about the cyber stalking investigation, including (but not limited to) every
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document (except for one document withheld on work product and law enforcement privilege
grounds) serialized to the cyber stalking investigative file, FBI case # 288A-TP-74641, that
refers to or discusses plaintiffs Jill and Scott Kelley, or that refer to or discuss either their
@yahoo.com email address and/or their @me.com email address. Plaintiffs’ counsel has
deposed three FBI witnesses, asking each one of them about various aspects of the investigation.
Plaintiffs have no valid need for further discovery into the FBI’s conduct of its cyber-stalking
investigation.
The Court should also consider plaintiffs’ depositions of DoD witnesses and the
subsequent news stories, which show that plaintiffs’ focus in eliciting deposition testimony may
not always be to establish facts necessary to prove their remaining claims, but may also (or
instead) be designed to promote an ulterior purpose of advancing plaintiffs’ public relations
goals. An Associated Press story published in September described those depositions and cited a
person “familiar with the case who spoke on condition of anonymity because the case is under a
judicial gag order.” Ex. E. Defendants previously relayed to the Court that they have been
concerned about the apparent disclosure of confidential deposition testimony evidenced by this
news story.11 That the cited source apparently was aware of the Court’s Amended Protective
Order (“a judicial gag order”) and chose anyway to disclose confidential information provides
reason for the Court to police the remaining depositions in this case, including the deposition of
SSA Malone to the extent it remains open and continued.12
For these reasons, the Court should uphold defense counsel’s instruction to SSA Malone
that he not answer the questions bulleted on pages 12-13, above, and pages 2-3 of the
                                                            
11

This issue was raised with plaintiffs’ counsel and the Court by defense counsel prior to the
Court’s September 16 teleconference with the parties.
12

FBI views the SSA Malone deposition as closed.
18

 

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supplemental filing. The Court should limit the deposition of SSA Malone pursuant to 30(d)(3).
Having terminated the deposition early, without leave of Court, see Ex. F at 19-21, plaintiffs
should not be permitted to take a second deposition of SSA Malone.
B.

The Court should also grant FBI’s motion for a protective order
pursuant to Federal rule of Civil Procedure 26(c).

In addition to protecting SSA Malone and the FBI from the improper deposition
questioning at the Malone deposition, this Court should also include in its protective order a
forward-looking provision, pursuant to Rule 26(c), limiting outstanding and future FBI-related
discovery.
Rule 26(c) authorizes the Court to issue a discovery order “to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” In furtherance of
that objective, Rule 26(c) “confers broad discretion on the trial court to decide when a protective
order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart,
467 U.S. 20, 36 (1984). With this broad authority, the court “should not hesitate to exercise
appropriate control over the discovery process.” Herbert v. Lando, 441 U.S. 153, 177 (1979).
“[D]iscovery has limits and … these limits grow more formidable as the showing of need
decreases.” Federal Practice and Procedure § 2036. Plaintiffs cannot show a litigation need for
much, if not most, of the FBI-related discovery they have been pursuing. Plaintiffs’ repeated
attempts to elicit detailed information about how the FBI conducted a cyber stalking
investigation in the summer and fall of 2012, and why the FBI pursued the investigation in one
direction or another, bears no relevance to the Privacy Act claim here, which relates only to
whether an unlawful disclosure of information to the media occurred in November 2012. Nor is
it reasonably calculated to lead to the discovery of admissible evidence.

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Plaintiffs should not be allowed to pursue further discovery related to their dismissed
claims or the FBI’s cyber stalking investigation. Plaintiffs’ pursuit of discovery into details of
the FBI’s cyber- stalking investigation has caused the FBI and its witnesses to incur undue
expense and burden at odds with the Court’s observation that the case should proceed “on a
considerably more streamlined basis” after the dismissal of nearly all of the 14 Counts in
plaintiffs’ Amended Complaint. Mem. Op. at 4.
The Court should limit the scope of the remaining discovery related to the FBI, so that
the remainder of the discovery period may proceed on the “streamlined basis” contemplated in
the Court’s ruling on the motion to dismiss. See Mem. Op. at 4. Plaintiff Jill Kelley sent an
email seeking assistance from a public relations consultant prior to filing the Complaint, see
Ex. G at 1, and plaintiffs have continued to attract media attention, including reports about
witnesses’ deposition testimony, see, e.g., Ex. H (same, regarding Amended Complaint); “From
Petraeus Scandal, an Apostle for Privacy,” New York Times, Jan. 5, 2014 (attached as Ex. I);
“Reporters face subpoenas...,” (Ex. E). Plaintiffs’ deposition of Fred Humphries, in which they
sought broad-ranging testimony with little apparent-relevance to a Privacy Act unlawfuldisclosure claim was followed by multiple news stories on the FBI’s cyberstalking investigation,
but little-to-no evidence that would actually be admissible in this case. Plaintiffs’ proposed
further discovery of the FBI’s cyber stalking investigation may be intended to provide a means
for promoting plaintiffs’ public image, but it does nothing to help resolve the pending legal claim
and would subject the FBI to additional undue burden and expense.
Moreover, were the Court to allow plaintiffs to continue probing the methods, timing, and
strategy by which the FBI pursued its cyber stalking investigation, such discovery would
inevitably implicate privileged information, including but not limited to information protected by

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the law enforcement privilege and the work product privilege.13 Details of the cyber stalking
investigation remain highly sensitive; the investigation involved the Director of the Central
Intelligence Agency and more than one four-star General. Allowing additional discovery into
this irrelevant area would likely lead to disputes between the parties regarding privilege issues,
and potentially more motions practice.
Plaintiffs should be wrapping up, not ramping up, their affirmative discovery. The Court
should limit FBI-related discovery to include only (a) facts sufficient to show disclosure(s) to the
media by one or more FBI employees in a manner violating the Privacy Act, and (b) facts
relating to the governments’ defenses to the plaintiffs’ remaining claims.
IV.

CONCLUSION
For the above-stated reasons, the Court should grant FBI’s motion for a protective order

providing two forms of protection: (1) limiting the deposition of SSA Malone on the ground that
certain portions of the deposition were “conducted in bad faith or in a manner that unreasonably
annoys, embarrasses, or oppresses” the witness or the Bureau, see Fed. R. Civ. P. 30(d)(3), and
(2) restricting pursuant to Rule 26(c) any outstanding discovery of or related to the FBI to certain
facts, namely: (a) facts sufficient to show disclosure(s) to the media by one or more FBI
employees in a manner violating the Privacy Act, and (b) facts relating to the government’s
defenses to plaintiffs’ remaining claims.
\
\
\

                                                            
13

SSA Malone and his co-agent worked closely with prosecutors in the U.S. Attorney’s
Office in Tampa.
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Dated: October 14, 2015

Respectfully Submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
JOHN R. TYLER
Assistant Branch Director
/s/ Lisa Zeidner Marcus
PETER J. PHIPPS (DC Bar #502904)
LISA ZEIDNER MARCUS (NY Bar)
STEPHEN J. BUCKINGHAM (MD Bar)
U.S. Department of Justice, Civil Division
Tel: (202) 514-3336
Fax: (202) 616-8470
Email: lisa.marcus@usdoj.gov
P.O. Box 883 Ben Franklin Station
Washington, DC 20530
Counsel for Defendants

22
 

.