JW v State Motion to Compel Bentel 01363
Number of Pages:11
Date Created:November 1, 2016
Date Uploaded to the Library:November 02, 2016
Autogenerated text from PDF
Case 1:13-cv-01363-EGS Document 140 Filed 11/01/16 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC., Plaintiff, U.S. DEPARTMENT STATE, Defendant. Civil Action No. 13-cv-1363 (EGS) PLAINTIFF MOTION COMPEL TESTIMONY JOHN BENTEL Plaintiff Judicial Watch, Inc., counsel and pursuant Rule the Federal Rules Civil Procedure, respectfully moves compel the testimony John Bentel. Mr. Bentel opposes this motion; the State Department takes position. grounds therefor, Plaintiff states follows: STATEMENT POINTS AND AUTHORITIES Introduction. response questions, Mr. Bentel invoked his Fifth Amendment rights. date, Mr. Bentel has not demonstrated has legitimate fear that answers all questions present danger him. Nor has demonstrated any such fear more than fanciful merely speculative. Mr. Bentel therefore must answer all questions asked him during his deposition. II. Background. The Court granted Plaintiff request depose Mr. Bentel for four reasons. First, the record this case appears contradict his sworn testimony before the Benghazi Committee. Memorandum Opinion 24. Second, Mr. Bentel declined assist the Rule 30(b)(6) deponent Case 1:13-cv-01363-EGS Document 140 Filed 11/01/16 Page preparation for her deposition. Id. 25. Third, the OIG May 2016 report found that Mr. Bentel told employees his office that Secretary Clinton email arrangement had been approved the State Department legal staff and also instructed his subordinates not discuss the Secretary email again. Id. Fourth, Mr. Bentel informed State Department staff person that anything sent the Secretary her state.gov Blackberry address would subject FOIA searches. Id. 26. Because the record suggests Mr. Bentel has knowledge the operation the clintonemail.com system, which within the scope discovery authorized the Court (Id.), the Court authorized Plaintiff depose Mr. Bentel. Plaintiff conferred with counsel for Mr. Bentel and the State Department and scheduled Mr. Bentel deposition for October 24, 2016. October 20, 2016, Mr. Bentel counsel informed Plaintiff that intended decline answer all substantive questions concerning the topic upon which [the Court] has ordered his deposition taken, reliance his rights under the Fifth Amendment. See Exhibit Because the Court court must review assertions privilege question-by-question basis (Anton Prospect Cafe Milano, Inc., 233 F.R.D. 216, 218 (D.D.C. 2006)), Plaintiff deposed Mr. Bentel October 24, 2016. Mr. Bentel declined answer questions and instead asserted, advice from legal counsel, decline answer the question and invoke Fifth Amendment rights. See Deposition Transcript John Bentel pp. 9-83.1 Mr. Bentel counsel also instructed Mr. Bentel not answer nine questions based objection that the questions were outside the scope discovery. Although Plaintiff does not concede that these questions exceeded the scope permissible discovery, Plaintiff does not move compel Mr. Bentel answer these questions. The transcripts and the audiovisual recording the deposition have already been provided the Court. -2- Case 1:13-cv-01363-EGS Document 140 Filed 11/01/16 Page After reviewing the deposition transcript, Plaintiff informed Mr. Bentel counsel that intended move compel Mr. Bentel testimony because failed substantiate his invocation his Fifth Amendment rights. October 31, 2016, Mr. Bentel counsel stated, Mr. Bentel stands the invocation his Fifth Amendment rights. did not identify any reasonable fear prosecution. See Exhibit III. Argument. The Fifth Amendment protects person against being incriminated his own compelled, testimonial communications. Anton, 233 F.R.D. 218. applies any proceeding disclosures which the witness reasonably believes could used [against him her] criminal prosecution could lead other evidence that might used. Id. (quoting Kastigar United States, 406 U.S. 441, 444-45 (1972). Stated another way, [t]he privilege afforded not only extends answers that would themselves support conviction under federal criminal statute but likewise embraces those which would furnish link the chain evidence needed prosecute the claimant for federal crime. But this protection must confined instances where the witness has reasonable cause apprehend danger from direct answer. Hoffman United States, 341 U.S. 479, 486 (1951) (internal citations omitted). addition, [t]he witness not exonerated from answering merely because declares that doing would incriminate himself his say-so does not itself establish the hazard incrimination. for the court say whether his silence justified. Id. determine whether the invocation proper, the Court must review assertions privilege question-by-question basis. Anton, 233 F.R.D. 218. When doing so, the Court must determine whether there reasonable basis for believing danger the witness might exist answering particular question. Id. The danger cannot merely speculative, however. sustain the invocation, the witness must demonstrate fear prosecution which -3- Case 1:13-cv-01363-EGS Document 140 Filed 11/01/16 Page more than fanciful merely speculative. Corrugated Container Antitrust Litigation, 662 F.2d 875, 883 (D.C. Cir. 1981). Mr. Bentel has invoked his Fifth Amendment rights without providing any justification whatsoever. has not identified let alone demonstrated fear prosecution answering any the questions asked him during his deposition. Nor has demonstrated any such fear more than fanciful merely speculative. Mr. Bentel has not provided Plaintiff the Court with any pertinent information allow assess the validity the invocation for each the questions Mr. Bentel declined answer. IV. Conclusion. Plaintiff respectfully requests the Court compel Mr. Bentel answer the questions asked him during his deposition. Dated: November 2016 Respectfully submitted, /s/ Michael Bekesha Michael Bekesha D.C. Bar No. 995749 JUDICIAL WATCH, INC. 425 Third Street S.W., Suite 800 Washington, 20024 (202) 646-5172 Counsel for Plaintiff Judicial Watch, Inc. -4- Case 1:13-cv-01363-EGS Document 140 Filed 11/01/16 Page Certification hereby certify that Plaintiff has good faith conferred with John Bentel and the U.S. Department State effort obtain Mr. Bentel testimony without court action. /s/ Michael Bekesha Case 1:13-cv-01363-EGS Document 140-1 Filed 11/01/16 Page EXHIBIT Case 1:13-cv-01363-EGS Document 140-1 Filed 11/01/16 Page BAKER BOnS L.LP THE WARNER 1299 PENNSYLVANIA AVE.. WASHINGTON. D.C. 200042400 TEL 202639.7700 FAX 202.639.7890 BakerBotls.com AUSTIN BEUING BRUSSELS DALLAS DUBAI HONG KONG HOUSTON LONDON MOSCOW NEW YORK PALO ALTO RIYADH SAN FRANCISCO WASHINGTON October 20, 2016 Kyle Clark TEL: 2026391320 FAX: 2025851034 VIA E-MAIL (MBEKESHA@JUDICIALWATCH.ORG) firstname.lastname@example.org Michael Bekesha Judicial Watch, Inc. 425 Third Street, S.W. Suite 800 Washington, D.C. 20024 Re: Judicial Watch, Inc. Us. Department a/State, Case Number 13-cv-1363 (EGS) Dear Michael: write confirm that our client, Mr. John Bentel, will decline answer all substantive questions concerning the topic upon which Judge Sullivan has order his deposition taken, reliance his rights under the Fifth Amendment. See Doc. 124, Memorandum Opinion, 13-cv-1363 (DD.C., Aug. 19,2016). hope that confirming Mr. Bentels intentions writing, Judicial Watch will conserve court reporter time and avoid unnecessary court reporter fees and attorney time and fees withdrawing the deposition request. look forward your reply. Respectfully, Kyle Clark Case 1:13-cv-01363-EGS Document 140-2 Filed 11/01/16 Page EXHIBIT Case 1:13-cv-01363-EGS Document 140-2 Filed 11/01/16 Page BAKER BOlTS l.L.P. THE WARNER 1299 fENNSYLVANi/ AVE., WASHINGTON, D.C. 20004-2400 TEL 202.639.7700 FAX 202.639 ,7890 AUSTIN BEUIllG BRUSSELS DillAS DUBAI HONG KONG HOUSTON LONDON MOSCOW NEW YORK PALO ALTO RIYADH SAN FRANCISCO WASHINGTON BC1kerBo~s.com October 31, 2016 Kyle Clark TEL: 2026391320 FAX: 2025851034 VIA E-MAIL (MBEKESHA@JUDICIALWATCH.ORG) kyle.clark@bakerbotts,com Michael Bekesha Judicial Watch, Inc. 425 Third Street, S.W. Suite 800 Washington, D.C. 20024 Re: Judicial Watch, Inc. Department oiState, Case Number 13-cv-1363 (EGS) Dear Michael: are receipt your October 26, 2016 letter and also your follow-up email October 28, 2016, appreciate you seeking our input before moving compel Mr. Bentel answer any the questions asked him. Mr. Bentel stands the invocation his Fifth Amendment rights during the October 24, 2016 deposition. told you advance the deposition, Mr. Bentel declined answer all substantive questions concerning the topic upon which Judge Sullivan has ordered his deposition taken, reliance his rights under the Fifth Amendment. Your October letter claims that Mr. Bentel must demonstrate that has reasonable belief that his answers would support conviction under federal criminal statute furnish link chain evidence needed prosecute. That not the correct legal standard. The conect standard for the court determine only whether there reasonable basis for believing danger the witness might exist. Anton Prospect MiI Iuc 233 F.R.D. IlO, 216,218 (D.D.C 2006) (emphasis added). doing, the witness specifically not required prove incrimination testimony otherwise demonstrate risk prosecution because that would surrender the very protection which the privilege designed guarantee. Corru gated Conlainer Antit rus( Litig., 662 F.2d 875,882-83 (D.C. Cir. 1981). Given Judge Sullivans observations the record and his Memorandum Opinion ordering the deposition Mr. Bentel (Mem. Order, ECF No. 124 24-26), coupled with Judge Sullivans sound legal observation that another nonparty deponent, Bryan Pagiiano, had the right invoke his own Fifth Amendment protections response the same type substantive questions posed Mr. Bentel (July 18, 2016 Tr. 6), ask that Judicial Watch reconsider its intention file such motion compel where the law does not support it. Case 1:13-cv-01363-EGS Document 140-2 Filed 11/01/16 Page BAKER BOns ll,P Michael Bekesha -2- October 31,2016 believe filing such motion under these circumstances would needlessly waste court resources and attorney time and fees. Respectfully. Kyle Clark Case 1:13-cv-01363-EGS Document 140-3 Filed 11/01/16 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC., Plaintiff, U.S. DEPARTMENT STATE, Defendant. Civil Action No. 13-cv-1363 (EGS) [PROPOSED] ORDER Upon consideration Plaintiff Motion Compel Testimony John Bentel and the entire record herein, hereby ORDERED that: Plaintiff motion GRANTED. ORDERED. DATE: The Hon. Emmet Sullivan, U.S.D.J.