In the United States District Court for the District of Columbia

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) GILBERTE JILL KELLEY, et al., ) Plaintiffs, ) ) v. ) Civil Action No. 13-cv-825 (ABJ) ) THE FEDERAL BUREAU OF ) INVESTIGATION, et al., ) ) Defendants. ) )

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: [email protected] P.O. Box 883 Ben Franklin Station Washington, DC 20530

Counsel for Defendants

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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

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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).

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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-Act-

protected 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.

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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.

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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 then- defendants 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 then- defendants 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:

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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.

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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.

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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.

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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.

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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

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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.”

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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.

Case 1:13-cv-00825-ABJ Document 73 Filed 10/15/15 Page 18 of 26

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.

Case 1:13-cv-00825-ABJ Document 73 Filed 10/15/15 Page 19 of 26

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. 71:23-

72:04. 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.

Case 1:13-cv-00825-ABJ Document 73 Filed 10/15/15 Page 20 of 26

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).

Case 1:13-cv-00825-ABJ Document 73 Filed 10/15/15 Page 21 of 26

“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

Case 1:13-cv-00825-ABJ Document 73 Filed 10/15/15 Page 22 of 26

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.

Case 1:13-cv-00825-ABJ Document 73 Filed 10/15/15 Page 23 of 26

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.

Case 1:13-cv-00825-ABJ Document 73 Filed 10/15/15 Page 24 of 26

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 cyberstalking 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 unlawful- disclosure 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

Case 1:13-cv-00825-ABJ Document 73 Filed 10/15/15 Page 25 of 26

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.

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

Dated: October 14, 2015 Respectfully Submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

JOHN R. TYLER Assistant Branch Director

Counsel for Defendants

Case 1:13-cv-00825-ABJ Document 73-1 Filed 10/15/15 Page 1 of 1 Case 1:13-cv-00825-ABJ Document 73-2 Filed 10/15/15 Page 1 of 7

Article, retrieved from CNN.com on October 8, 2015, available at: http://www.cnn.com/2015/04/19/politics/david-petraeus-paula-broadwell-fbi- case/

FBI agent testifies in Paula Broadwell cyberstalking case, CNN.com

By Jake Tapper, CNN Updated 3:09 PM ET, Mon April 20, 2015

(CNN) The FBI special agent who brought the David Petraeus-Paula Broadwell cyberstalking case to the attention of law enforcement recently testified that the FBI handled the case under political pressure because of the 2012 presidential election, “marginalizing” and making crude insinuations about the victim in the case, Jill Kelley, whom they cast as “some femme fatale.”

In the redacted March 20 deposition, obtained from a source by CNN, Special Agent Frederick W. Humphries II claimed under oath that he “was told by supervisors that” the 2012 presidential election “would explain the potential reason why there was so much interference” in the case “from headquarters, that nobody wanted this case during an election cycle.”

The deposition is part of the lawsuit brought by Dr. Scott and Jill Kelley against government agencies, departments and major figures in the Obama administration for allegedly defaming their character in the Petraeus-Broadwell sex scandal.

The affair between Petraeus and Broadwell, his biographer-turned lover, brought a disgraced end to the decorated general’s career.

Though the Kelleys were the victims of the original cyberstalking case, as the Petraeus scandal exploded in the public, Jill Kelley’s name was dragged through the mud by unnamed Obama administration and law enforcement officials and many in the media painted her in a particularly unflattering light, the subject of the Kelley’s lawsuit.

Petraeus pleaded guilty last month to one federal charge of removing and retaining classified information, having improperly shared his black books with Broadwell and lied about it to the FBI. He is scheduled to be sentenced on Thursday. Case 1:13-cv-00825-ABJ Document 73-2 Filed 10/15/15 Page 2 of 7

All charges against Broadwell were dropped in December 2012.

Humphries testified he believed Kelley’s name had been leaked by someone at FBI headquarters “and it seemed to be a purposeful attempt to discredit both Mrs. Kelley and myself.”

Humphries said in his deposition he was confused by FBI’s leaders’ focus on Jill Kelley instead of Broadwell, whom they identified as the cyberstalker as early as June 2012. He testified her actions compromised security of high-level military intelligence personnel and information, but for some reason higher-ups in the FBI kept interfering in what seemed to him to be a fairly straightforward case. In one incident, FBI agents were called back from the airport as they were about to fly to North Carolina to interview Broadwell.

All the while, the FBI kept shifting focus on the victims in the case, Humphries testified, or more specifically on Jill Kelley. He testified he would occasionally hear “lewd comments” from FBI agents about Kelley, including one individual making “a comment that he was pleased that Mrs. Kelley was in the Citizens’ Academy and that [he] had nominated her because of her [big] breasts.”

“I couldn’t understand why there was so much animosity” against Jill Kelley amongst his FBI superiors, Humphries testified.

“[I]t was stated in some ways and reflected in the body language that their view was that Jill Kelley had sort of brought this on herself and was some femme fatale,” he said.

He wondered if this warped view of the case was rooted in “ineptness, incompetence or was politically motivated,” he testified.

A request for comment made by CNN to a representative of Paula Broadwell was not met by press time.

Alan Raul, an attorney for the Kelleys, also declined comment to CNN on Sunday, as did Petraeus attorney Robert Barnett.

A spokesman for the Justice Department did not return a call from CNN on Sunday; a spokesman for the FBI did not offer any comment. The administration has refrained from commenting on the case in the past given the current litigation.

Other law enforcement officials told CNN what Humphries and others regarded as interference from headquarters could also be seen as efforts to ensure the FBI did everything by the book in a highly sensitive case. (They got court-approved warrants for things normally the FBI can administratively subpoena).

Some at the FBI thought Humphries did things to keep inserting himself into the case even after he was told to recuse himself given that he had a friendly relationship with Kelley. Those efforts allegedly include attempts at communication that Humphries is said to have had during the Case 1:13-cv-00825-ABJ Document 73-2 Filed 10/15/15 Page 3 of 7

course of the investigations with then-House Majority Leader Eric Cantor, R-Virginia.

He testified that he and his wife and children are friends with the Kelleys and their children through their outreach to the military and law enforcement communities in Tampa, and did not understand his bosses’ insinuations or harsh judgments.

Were some officials in the Obama administration attempting misdirection away from the CIA Director in the thick of the 2012 presidential race? Were they motivated by sexism or some other pre-judgment of Kelley? These are implicit and explicit suggestions in the lawsuit, respectively, but as of now there has not been any clear answer from the administration as to why -- according to the Kelleys’ suit and Humphries’ deposition -- law enforcement officials were so skeptical of Jill Kelley.

FBI blaming the victims?

The story began in May 2012, when four-star Gen. John Allen began receiving e-mails from “[email protected],” which “disparaged” Kelley and referenced an upcoming private dinner the Kelleys were hosting with “several senior foreign intelligence, defense and diplomatic officials,” according to the lawsuit.

The email troubled Allen given the potential security concern and “frightened the Kelleys, as it indicated that Mrs. Kelley was being followed or stalked, and raised serious concerns about her own safety and well being, particularly given the number of terrorist risks faced by CENTCOM leaders.”

Broadwell later admitted to having sent that email as well as another from “Tampa Angel” to Dr. Scott Kelley, also disparaging his wife, promising “embarrassment for all, including spouses, such as info in national headlines.”

Jill Kelley reached out to Humphries, an FBI Agent whom she and her husband knew socially.

“She explained that Gen. Allen had received an odd e-mail,” Humphries testified, noting that “whoever sent these e-mails is either in close physical proximity or has penetrated the cyber security of these folks to include the director of the Central Intelligence Agency, Director Petraeus, and I was worried and concerned for his safety, the safety of the generals.”

Humphries thought the emails “ominous” and contacted Special Agent Adam Malone of the Tampa Cyber Squad.

“We had already reached the threshold on the cyber or physical security of senior government leadership and possible their email,” he said.

By the third week of June, the FBI had identified Broadwell as the cyberstalker, Humphries said, relating how he saw FBI videotape of “a BMW pulling up to a Starbucks in North Carolina and shortly thereafter the alleged subject of the case enters and logs on, and some of the e-mails were being sent, so they had a firm idea of who it was.” Case 1:13-cv-00825-ABJ Document 73-2 Filed 10/15/15 Page 4 of 7

In an attempt to apparently suss out whatever rivalry or animus might exist between Broadwell and Kelley, Humphries was asked to call Kelley, “sort of like a ruse like to see if Mrs. Kelley knew who the subject was.”

He did so, and asked her for a book recommendation for background on Petraeus. But Kelley didn’t mention Broadwell or her book about the man with whom she’d had an affair, “All In: The Education of David Petraeus.”

According to Humphries, when he raised the title of the book, Kelley said, “Gen. Petraeus doesn’t really like that book. He said the person who came and wrote it sort of came in for the guise of being an academic researcher and then ended up writing a book.”

Humphries said he was surprised Kelley didn’t know the name of the book let alone the author. If Broadwell “would have some animus against Mrs. Kelley, Mrs. Kelley doesn’t even know who she is,” he recalled thinking.

Meanwhile, others in the FBI were heading in an altogether different direction with their judgments of the jet-setting socialites, Humphries said.

“I was surprised throughout the process of the marginalization of Mrs. Kelley as a victim in this case because I heard comments from them saying things like -- you know, I reminded them at one point, you may not agree with the lifestyle of the Kelleys, but they’re victims in this crime,” he testified.

The special agent in charge, Steven Ibison, “kind of rolled his eyes and snorted at the proposal that I said they were victims,” Humphries said.

“The only victim is her husband because he has to pay for all the food that she goes out and eats and takes pictures of and sends to everyone,” said Kevin Eaton, the assistant special agent in charge, according to Humphries.

Kelley is often took photos of her food when she goes out to eat and sends them to her friends, a source close to Kelley said.

It was a comment that “shocked and surprised” Humphries since it revealed that the FBI was looking at Kelley’s e-mails beyond the ones relevant to the cyberstalking, contrary to Kelley’s explicit instruction.

“Something was starting to shift in my mind to make me realize that they had a different view of this than how I understand what was taking place,” he testified.

This was all “Completely counter to the Jill Kelley that I had known for three years and her husband, Scott Kelley. And I couldn’t understand why there was so much angst over this very simple criminal case that could be resolved very quickly and expeditiously and yet was being made far more complicated,” he said. Case 1:13-cv-00825-ABJ Document 73-2 Filed 10/15/15 Page 5 of 7

But soon the FBI leaders would be challenging Humphries’ integrity and marital fidelity as well.

The FBI director “just shoved these up my ass”

It’s not surprising that a case involving cyberstalking of top generals and the CIA director would prompt the awareness of higher-ups at the FBI. But the behavior from those officials in Washington, shocked Humphries.

In June 2012, Humphries was told by Stacy Arruda, FBI supervisory special agent with the Tampa Division of the Cyber Crime, FBI agents went to the airport to fly to North Carolina to interview Broadwell.

“But they were called back to have their questions reviewed,” by Ibison, the special agent in charge, Humphries said. He said his understand was that deputy director of the FBI Joyce “halted” the interview of Broadwell, which was not consistent with FBI protocol.

Arruda became so “concerned and was frustrated by the high level of direction,” Humphries said, she ultimately “felt it was wise to keep a separate copy” of all the evidence in the case.

Ultimately Arruda told Humphries that higher-ups essentially removed her from the case.

In July 2012, Joyce summoned Ibison out of meeting, Humphries testified. Humphries testified that he was later told that he was the subject of the discussion; Eaton, the assistant special agent in charge, told Humphries that Joyce and the director of the FBI Robert Mueller suggested that Humphries was having an inappropriate relationship with Jill Kelley.

Humphries said he was “completely blind-sided by that accusation and actually shocked and stunned ... I immediately denied it and offered to voluntarily take a polygraph at the same time.”

He said he was confused as to why the FBI focused on Kelley and him instead of Broadwell.

In September 2012 Ibison “summoned” Humphries to a meeting and asked him “whether there was anything in my communications with Jill Kelley for which I would be embarrassed,” he testified.

“No,” Humphries said, and Ibison “threw a bunch of pictures at me and files of my e- mails to Jill Kelley.”

“Well, I told the director that and he just shoved these up my ass,” Ibison said, according to Humphries, “and he tossed the pictures at me.”

The photographs to Humphries were completely innocent, including “Halloween photos, photos at hookah bars with other employees ... One was a picture of the famous mannequin picture with me shirtless between the two, pictures that I had sent to all my supervisors and they had used at annual conferences as funny pictured from the division.” Case 1:13-cv-00825-ABJ Document 73-2 Filed 10/15/15 Page 6 of 7

The origin of the “mannequin” picture -- described in the media when the story broke in November 2012 as a “shirtless photo” the FBI agent sent to Jill Kelley -- was hardly seductive, as Humphries describes it.

At a range in 2009, members of the SWAT team “were joking that my bald head looked like the shirtless dummies that we had. And so somebody suggested that we take a picture ... And we took picture and it went out to 50 different people,” Humphries said. “I actually sent it to Scott Kelley’s email address ... it was never meant to be anything but a joke.”

“These are pictures you saw before,” Humphries said, according to the deposition. Ibison’s response was, “Well, it was OK inside the FBI but not OK to share it outside the FBI,” according to Humphries.

Humphries left his meeting with Ibison under the impression that FBI Director Mueller believed “that I had messed up the case for the government because of my ... alleged inappropriate misconduct with Mrs. Kelley, that I had ruined the government’s case to ever be able to fully prosecute without embarrassing the bureau.”

Meanwhile, at this point Petraeus had not been interviewed.

When Humphries asked his supervisor about the direction of the case, he was told, “No one wants to be involved in a case like this during an election cycle.”

Election Day was Nov. 6, 2012. Three days later, Petraeus resigned, after which senior military and law enforcement officials leaked Kelley’s name to the media. Accusations soon followed, with ABC News reporting that the FBI had “uncovered ‘potentially inappropriate’ emails between Gen. Allen and Kelley” and Fox News saying the officials “characterize certain email communications as the “‘equivalent of phone sex over email,’“ charges the Kelleys vociferously deny.

Jill Kelley’s lawsuit states that her “reputation is indelibly tainted ... consistently referred to as the ‘center’ of the ‘sex scandal’ and is often portrayed as the woman who brought down two American generals.”

In addition, amidst the wild media fracas of this case, Gen. Allen’s anticipated promotion to Supreme Allied Commander of Europe for NATO was delayed until an investigation into his relationship with Kelley was completed. By the time he was cleared of all wrongdoing, Allen had retired from the military.

Humphries has a long and decorated career with the FBI, working on the Joint Terrorism Task Forces in Seattle and Tampa, as well as serving as program manager for FBI operations at Bagram Air Force Base in Afghanistan. In 2002 he received the director’s award for outstanding counterterrorism investigation for his work helping the thwart the would be Millennium bomber Ahmed Ressam; in 2012 he received the FBI Medal of Valor for a 2010 incident where he shot and killed a man wielding a knife outside MacDill Air Force Base. Case 1:13-cv-00825-ABJ Document 73-2 Filed 10/15/15 Page 7 of 7

Among the many others whom will likely be deposed in the case are former FBI Deputy Director Sean Joyce, former Secretary of Defense Leon Panetta, and Secretary of the Department of Homeland Security Jeh Johnson, who at the time was general counsel at the Pentagon.

CNN’s Evan Perez contributed to this report.

Case 1:13-cv-00825-ABJ Document 73-3 Filed 10/15/15 Page 1 of 2

Article, retrieved from Politico.com on October 8, 2015, available at: http://www.politico.com/blogs/under-the-radar/2015/04/fbi-agent-in-sworn- deposition-petraeus-lover-accessed-his-emails-206017

Politico.com Blog: Under the Radar Blog

FBI agent in sworn deposition: Petraeus lover accessed his emails

By Josh Gerstein 04/23/15 01:12 PM EDT

Paula Broadwell had regular access to CIA Director David Petraeus’s emails and may have continued to examine them even after an FBI investigation had already begun in the months leading up to the 2012 presidential election, an FBI agent said in a deposition last month.

According to a redacted transcript of the deposition, obtained by POLITICO, FBI Agent Fred Humphries said Petraeus was asked at least twice to change his password because unauthorized access was taking place to his account. Initially, agents didn’t know who had penetrated the retired general’s email but eventually determined it was Broadwell, who was writing a biography about Petraeus and was also his lover for a time.

“We believed that the email had been compromised,” Humphries said during sworn questioning in Tampa stemming from a lawsuit brought against the U.S. government by a Florida woman who received threatening emails from Broadwell, Jill Kelley. “His first admonishment [to change the code] was made because we didn’t know who it was, and then upon learning who it was we had a conversation that that should be changed.”

In the portions of the transcript POLITICO obtained, Humphries does not say specifically which of Petraeus’s email accounts were affected. However, at one point, the FBI agent declared that Broadwell “had access to all of the other emails.”

Two people familiar with the investigation said one of the affected email accounts was Petraeus’s unclassified CIA email account, which contained details about travel plans and appointments for other senior government officials.

In the deposition, Kelley attorney Paul Hemmersbaugh asked Humphries: “Do you believe that Mrs. Broadwell’s actions potentially compromised the security of high level military intelligence personnel and information?”

“Yes,” Humphries replied.

Petraeus is set to be sentenced Thursday afternoon in federal court in Charlotte, N.C. on a single misdemeanor count of mishandling classified information. The offense to which he agreed to plead guilty carries a possible sentence of up to a year in prison, but prosecutors have agreed not to seek jail time.

Case 1:13-cv-00825-ABJ Document 73-3 Filed 10/15/15 Page 2 of 2

In a statement of facts the defense and prosecution filed with the court, Petraeus admitted giving a set of notebooks containing highly classified information to Broadwell, keeping them at his home after he claimed to have returned all classified information, and lying to FBI agents about his handling of the so-called “black books.” The statement does not discuss his email accounts, Broadwell’s access to them, or how she obtained that access. No classified information appeared in his biography, “All In,” published in 2012, the statement adds. It was widely known that Broadwell had access to Petraeus’s personal Gmail account because the pair traded messages via a “drafts” folder in his account. While there were reports she may have had access to other accounts, that question has been more murky.

Broadwell’s access to Petraeus’s CIA account is a sensitive point because that account was more likely to receive sensitive information about the CIA, the military and other officials. It’s unclear how long her access continued but it appears she maintained it through much of 2012.

CNN obtained the same deposition earlier this week and reported that top FBI officials scuttled plans to confront Broadwell in June 2012. The reason for the delay is unclear, but Humphries suspected it had to do with President Barack Obama’s re-election. Petraeus wound up resigning three days after the election. Kelley’s lawsuit claims the federal government violated the Privacy Act by examining emails she never gave them permission to access and by leaking information from those emails to the media.

Spokesmen for the CIA and FBI did not respond to requests for comment on the deposition.

CORRECTION (Thursday, 6:31 P.M.): An earlier version of this post misstated Hemmersbaugh’s client. Case 1:13-cv-00825-ABJ Document 73-4 Filed 10/15/15 Page 1 of 2

Article, retrieved from Tampa Bay Times website on October 8, 2015, available at: http://www.tampabay.com/news/military/fbi-agents-testimony-bolsters- jill-kelleys-claims-in-defamation-case/2226294

Tampa Bay Times FBI agent’s testimony bolsters Jill Kelley’s claims in defamation case

By Times Staff Monday, April 20, 2015 6:00pm

TAMPA — The FBI agent who triggered an investigation of the David Petraeus-Paula Broadwell sex scandal characterizes Tampa socialite Jill Kelley as a woman twice victimized — first by Broadwell and then by the FBI.

Special Agent Frederick Humphries II said in a sworn deposition obtained by CNN that he couldn’t understand why his superiors displayed animosity toward Kelley. He considered that it might be politically motivated behavior to deflect attention from Petraeus before the 2012 presidential election. Days after the election, Petraeus resigned as director of the CIA over his extramarital affair.

“No one wants to be involved in a case like this during an election cycle,” he recalled hearing from a supervisor.

CNN based its report on Humphries’ March 20 deposition for a defamation lawsuit filed by Kelley and her husband, Scott Kelley, who have claims pending against the FBI and the Department of Defense.

She asserts that they violated her privacy, defamed her and improperly gained access to her email, all in a way that hurt her reputation and livelihood.

At the FBI, she was regarded by some as a “femme fatale” and at times was the topic of lewd comments, Humphries said in the deposition. He said he felt compelled to remind colleagues that the Kelleys were victims of cyberstalking.

“I was surprised throughout the process of the marginalization of Mrs. Kelley as a victim in this case,” said Humphries, who is still based in Tampa.

He recalled that Steven Ibison, then in charge of the FBI’s Tampa office, “kind of rolled his eyes and snorted at the proposal that I said they were victims.”

The Kelleys had socialized with Petraeus when he was an Army general in charge of U.S. Central Command in Tampa and with other military leaders, at times hosting them in their Bayshore Boulevard home. The Kelleys also knew the agent socially.

Jill Kelley turned to Humphries after hostile emails disparaging her were received by her husband and by four-star Gen. John Allen. The investigation led to Broadwell, Petraeus’ biographer and paramour.

While the Justice Department typically protects the names of victims in federal investigations, Kelley’s name became public. In the lawsuit, she complains about being cast as the woman at the center of a sex scandal, one alleged to have brought down two generals.

Case 1:13-cv-00825-ABJ Document 73-4 Filed 10/15/15 Page 2 of 2

The other was Allen, who retired from the military after an investigation of his own e-mail exchanges with Kelley.

He was cleared of all wrongdoing — but not before someone falsely told Fox News that the exchanges were like phone sex, the lawsuit alleges.

Humphries, according to CNN, testified that he believed someone at FBI headquarters leaked Kelley’s name in what “seemed to be a purposeful attempt to discredit both Mrs. Kelley and myself.”

The agent said he was “completely blindsided” by a suggestion from then-FBI director Robert Mueller that Humphries was having an inappropriate relationship with Kelley.

David Couvertier, spokesman for the FBI’s Tampa office, declined to comment Monday on Humphries’ deposition because of the pending litigation.

Jill Kelley and her attorney also declined to comment.

The lawsuit was filed in Washington, D.C., in 2013. The complaint and an amended complaint named Ibison, Mueller and former CIA director and Defense Secretary Leon Panetta, among others, but a judge dismissed several claims.

FBI agent’s testimony bolsters Jill Kelley’s claims in defamation case 04/20/15 [Last modified: Monday, April 20, 2015 10:19pm]

FOCUS - 1 of 1 DOCUMENT

September 2, 2015 Wednesday 11:51 PM GMT

SECTION: WASHINGTON DATELINE

LENGTH: 649 words

HEADLINE: Reporters face subpoenas in case over CIA head's resignation

BYLINE: By TED BRIDIS and ERIC TUCKER, Associated Press

DATELINE: WASHINGTON

BODY:

WASHINGTON (AP) - A couple suing over leaks in the federal investigation that led to CIA Director David Petraeus' resignation intend to subpoena at least two journalists in an attempt to compel testimony about their sources, The Associated Press has learned.

That legal strategy was driven by a judge's decision in July to quash efforts by lawyers for Scott and Jill Kelley to question Homeland Security Secretary Jeh Johnson, who was the Defense Department's general counsel at the time of the investigation.

The judge had told the Kelleys' lawyers that because Johnson was a Cabinet secretary, they could not question him until after subpoenaing reporters about any conversations Johnson or his subordinates had with journalists about Jill Kelley's relationship with Petraeus or Marine Gen. John R. Allen.

"It may turn out that the information plaintiffs seek cannot be obtained through any other means, but that ... has yet to be established," U.S. District Judge Amy Berman Jackson said in her ruling.

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.

She has denied this, and Allen later was exonerated by the Pentagon's inspector general.

The Kelleys, from Tampa, Florida, sued the government in June 2013 in Washington, alleging that officials violated the U.S. Privacy Act by disclosing information about them. Case 1:13-cv-00825-ABJ Document 73-5 Filed 10/15/15 Page 2 of 2 Page 2 Reporters face subpoenas in case over CIA head's resignation The Associated Press September 2, 2015 Wednesday 11:51 PM GMT

Among reporters, their lawyers plan to subpoena Daniel Klaidman, formerly of The Daily Beast, and Douglas Frantz, formerly the national security editor at The Washington Post, according to a person familiar with the case who spoke on condition of anonymity because the case is under a judicial gag order.

Klaidman exchanged messages with Johnson's private Gmail account about Jill Kelley on Nov. 11, 2012, according to court files. Frantz had faxed Jill Kelley the same day and told her that reporters were shown copies of harassing emails sent to her regarding her friendship with Petraeus.

No subpoenas have been issued, and depositions are expected to continue through Oct. 31.

Current and former government officials already questioned under oath include former Defense Secretary Leon Panetta, former Pentagon chief of staff Jeremy Bash and former Pentagon and CIA spokesman George Little.

In the weeks ahead, lawyers expect to question Petraeus, Allen and Philippe Reines, who was a senior adviser to Hillary Rodham Clinton when she was secretary of state. According to testimony, Reines exchanged emails about Jill Kelley with Pentagon officials at the time.

Reines did not immediately respond to an email Wednesday from the AP asking to discuss the case.

Klaidman, now deputy editor at Yahoo News, declined to comment. Frantz, an assistant secretary at the State Department, did not immediately return a telephone message left with a secretary.

The Kelley family's Washington lawyer, Alan Charles Raul, declined to comment.

In 2012, Jill Kelley complained to the FBI when an unknown person sent her harassing emails. Her complaint triggered a criminal investigation that led agents to Paula Broadwell, Petraeus' biographer. Broadwell had been having an affair with him.

The FBI concluded that Broadwell had forwarded to her personal email account at least 1,500 messages about intelligence and military matters from Petraeus' official CIA email account. Petraeus resigned Nov. 9, 2012, and later pleaded guilty to one misdemeanor charge of mishandling classified information.

Jill Kelley's name and some harassing emails were disclosed on Nov. 11, 2012, to reporters amid the sensational disclosures about Petraeus, a former Army general. Two days later, she was linked to Allen, the then-commander of U.S. forces in Afghanistan.

LOAD-DATE: September 3, 2015 Case 1:13-cv-00825-ABJ Document 73-6 Filed 10/15/15 Page 1 of 21

Page 1 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

GILBERTE JILL KELLEY, et al.,

Plaintiffs,

vs. Civil Action No.

THE FEDERAL BUREAU OF 13-cv-825(ABJ)

INVESTIGATION, et al.,

Defendants.

______/

- C O N F I D E N T I A L -

The deposition of ADAM MALONE was held on

Wednesday, September 2, 2015, commencing at 10:10 a.m.,

at the U.S. Department of Justice, 20 Massachusetts

Avenue, N.W. 6th Floor, Washington, D.C., 20530, before

Christine A. Gonzalez, CSR, RPR, Notary Public.

REPORTED BY: Christine A. Gonzalez, CSR, RPR

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ORIGINAL TRANSCRIPT DESIGNATED "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" ONLY NON-DESIGNATED PORTIONS MAY BE DISCLOSED TO NON-COVERED PERSONS Case 1:13-cv-00825-ABJ Document 73-6 Filed 10/15/15 Page 2 of 21

Page 2 1 APPEARANCES: 2 3 ON BEHALF OF THE PLAINTIFFS: 4 GUY S. NEAL, ESQ. 5 TASHA D. MANORANJAN, ESQ. 6 Sidley Austin, LLP 7 1501 K Street, N.W. 8 Washington, D.C. 20005 9 10 11 12 ON BEHALF OF DEFENDANTS, THE FEDERAL BUREAU OF 13 INVESTIGATION AND THE DEPARTMENT OF DEFENSE: 14 LISA ZEIDNER MARCUS, ESQ. 15 JOHN R. TYLER, ESQ. 16 U.S. Department of Justice, Civil Division 17 Federal Programs Branch 18 20 Massachusetts Avenue, N.W. 19 Washington, D.C. 20530 20 21 22 23 24 25 APPEARANCES (Continued on the next page)

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Page 3 1 APPEARANCES CONTINUED: 2 ON BEHALF OF DEFENDANT: 3 THE FEDERAL BUREAU OF INVESTIGATION: 4 KATHRYN L. HOLLOMAN, ESQ. 5 U.S. Department of Justice 6 Federal Bureau of Investigation 7 J. Edgar Hoover Building 8 935 Pennsylvania Avenue, N.W. 9 Washington, D.C. 20535 10 11 12 13 14 ON BEHALF OF DEFENDANT THE DEPARTMENT OF DEFENSE: 15 ERIK J. ABLIN, ESQ. (VIA TELEPHONE) 16 U.S. Department of Defense 17 Office of the General Counsel 18 1400 Defense Pentagon, Room 19 Washington, D.C. 20301 20 21 22 23 24 25 APPEARANCES (Continued on the next page)

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Page 4 1 APPEARANCES CONTINUED: 2 3 ALSO PRESENT: Gilberte Jill Kelley 4 Rachel Chrisinger, Paralegal 5 Tim Snowball, Intern 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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Page 5 1 INDEX 2 Deposition of ADAM MALONE 3 September 2, 2015 4 5 Examination By: Page 6 Mr. Neal 6 7 8 Exhibit No. Marked 9 Exhibit 78 Subpoena 33 10 Exhibit 79 Letter - September 2, 2015 34 11 Exhibit 80 Department of Justice 52 12 Federal Bureau of Investigation 13 Redacted Copy - Documents 14 Bates No. FBI0000044-0207 15 16 17 18 19 20 21 22 23 24 25

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Page 71 112:13 212:13 312:13 412:13 512:13 612:13 BY MR. NEAL: 712:13 Q When were you able to make that 812:13 determination? 912:13 MS. MARCUS: Objection, relevance. 1012:13 BY MR. NEAL: 1112:13 Q You can answer the question. 1212:13 MS. MARCUS: Wait. Hold on. I'm not done. 1312:13 MR. NEAL: Sorry. 1412:14 MS. MARCUS: That's okay. Please give me a 1512:14 moment to consult with Agency counsel. The question is 1612:14 outside the scope of Rule 26, not likely to lead to the 1712:14 discovery of admissible evidence. 1812:14 Can you please explain, if you disagree, 1912:14 why you think that question is likely to lead to the 2012:15 discovery of admissible evidence in this Privacy Act 2112:15 case? 2212:15 MR. NEAL: Yes. Most definitely, I do 2312:15 disagree. The date by which the FBI was able to 2412:15 identify both location and, ultimately, the identity of 2512:15 the person who was cyberstalking my client is directly

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Page 72 112:15 relevant to the subsequent actions undertaken by the 212:15 FBI to engage in a far-reaching and, ultimately, 312:15 impermissible and unauthorized search of my clients' 412:15 emails. 512:15 I am setting forward -- setting forth or, 612:15 at least, laying the foundation for the predicate of 712:15 that argument. I'm not asking you to agree or 812:15 disagree, but that's the intent of my questioning. 912:15 I've got a fair number of questions that relate to 1012:15 that. 1112:15 MS. MARCUS: Well, I understand what you 1212:16 just said, but that actually wasn't my question. I 1312:16 asked you to please explain why you think that the 1412:16 question is likely to lead to the discovery of 1512:16 admissible evidence in this Privacy Act case. 1612:16 MR. NEAL: I answered your question. Let's 1712:16 proceed. 1812:16 MS. MARCUS: I restate my objection on the 1912:16 basis of relevance. The question is outside of the 2012:16 scope of Rule 26 and I think also other rules in the 2112:16 30s on depositions. 2212:16 I will instruct the witness not to answer, 2312:16 if we need to seek a protective order. 2412:17 MR. NEAL: Okay. Let's keep this on the 2512:17 record for now. You're instructing the witness not to

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Page 73 112:17 answer a question based on a relevance objection, yes 212:17 or no? 312:17 MS. MARCUS: No. 412:17 MR. NEAL: Okay. You cited to me Rule 26 512:17 with a contention that these lines of questions, or 612:17 line of questioning, is beyond the scope of what is 712:17 relevant in the case. You also made reference to Rule 812:17 30, taking depositions. I heard you invoke a relevance 912:17 objection. 1012:17 MS. MARCUS: That's correct. 1112:17 MR. NEAL: So having said that, you're 1212:17 instructing the witness not to answer my question on 1312:17 the basis of what you deem to be relevant or not 1412:17 relevant in this case? 1512:18 MS. MARCUS: That is not correct. 1612:18 MR. NEAL: What is incorrect about my 1712:18 statement? 1812:18 MS. MARCUS: The -- you're correct that I 1912:18 objected on the basis of relevance and that I noted 2012:18 that the question was outside of the scope of Rule 26. 2112:18 I am instructing not to answer on the basis of Rule -- 2212:19 if you wish to push this, this line of questioning, I 2312:19 would instruct him not to answer on the basis of Rule 2412:19 30(c)(2). 2512:19 MR. NEAL: Those objections are

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Page 74 112:19 insufficient, as a matter of law and practice, to 212:19 invoke -- to instruct a witness not to respond to 312:19 questions from opposing counsel. At this point in 412:19 time, rather than engaging in a debate on the record, 512:20 my suggestion is we go off the record, try to resolve 612:20 our differences. 712:20 To the extent we're unable to resolve our 812:20 differences, then we'll put back on the record where we 912:20 stand at that point in time, and whether or not this 1012:20 deposition should continue or whether or not we should 1112:20 make an effort, after the lunch break, to get the 1212:20 Court's attention to this matter, rather than, under my 1312:20 view, having to stop the deposition for, in my view, an 1412:20 inappropriate reason, only to have to recommence it 1512:20 once we get the Court's attention. 1612:20 Shall we go off the record? Okay. 1712:20 (There was a brief recess taken.) 1801:39 MR. NEAL: Back on the record. We took a 1902:21 break, which extended into a lunch break, during which 2002:21 counsel attempted to resolve the DOJ's objection and 2102:21 specifically its instruction to the witness not to 2202:22 answer questions about when the FBI suspected, and 2302:22 later determined, that Paula Broadwell was the 2402:22 cyberstalker of Jill Kelley and Dr. Scott Kelley. 2502:22 We were not able to resolve our

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Page 75 102:22 differences, despite our good faith efforts. We agreed 202:22 to limit our argument over the merits, as to which we 302:22 have very divergent opinions. I will, however, state 402:22 that it is my belief that counsel's instruction is 502:22 inappropriate, that it's inconsistent with Rule 602:22 30(d)(1), and the Advisory Committee Notes. 702:22 Federal Rule of Civil Procedure 30(d)(1) 802:22 forbids a party to instruct a deponent to refuse to 902:22 answer a question unless such instruction is necessary 1002:22 to preserve a privilege, to enforce a limitation on 1102:23 evidence imposed by the Court, or to permit the making 1202:23 of a motion for a protective order under Rule 30(d)(3). 1302:23 I have offered to keep the sensitive parts 1402:23 of the transcript under seal, and the DOJ has taken 1502:23 that matter under advisement. But we were unable to 1602:23 reach an agreement during the lunch break on a protocol 1702:23 to keep my questions and the witness' answers under 1802:23 seal. 1902:23 I debated whether to stop this deposition 2002:23 and reach out either immediately, or in short order, to 2102:23 the Court with a motion to compel, but I decided to 2202:24 proceed. The problem I have is, I don't have just one 2302:24 question for this witness on this subject matter, I 2402:24 have a series of questions. 2502:24 In fact, a good chunk of my outline relates

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Page 76 102:24 to when the FBI discovered the identity of the 202:24 cyberstalker and why 302:24 402:24 after they made such a determination. 502:24 Of course, my question may yield answers to allow me to 602:24 explore other relevant areas in this case. 702:24 I am mindful that the witness is a busy 802:24 professional, who flew in from Tennessee to be deposed 902:24 today. I will proceed, reluctantly, to do two things: 1002:24 One, to make my record by continuing with my line of 1102:24 questioning on this subject matter until, as a 1202:25 practical matter, it makes no sense for me to go 1302:25 further, in the face of the DOJ instructing the witness 1402:25 not to answer my questions, and, two, to question the 1502:25 witness about matters unrelated to this cyberstalker 1602:25 issue. 1702:25 Finally, as I noted at the outset of the 1802:25 deposition, I believe the DOJ failed to produce, one, 1902:25 all emails this witness sent, received relating to the 2002:25 Jill and Dr. Scott Kelley investigation that are 2102:25 responsive to our written discovery requests, and, two, 2202:25 the complete case file of the FBI 's cyberstalking 2302:25 investigation. 2402:25 I, therefore, believe I am proceeding while 2502:25 handcuffed by significant limitations. Nonetheless, I

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Page 77 102:25 will proceed to the best of my ability. And I do 202:25 intend to reach out to the Court within the next five 302:26 business days and possibly brief our position on this 402:26 matter. 502:26 I will, therefore, keep the deposition open 602:26 and reserve my right to recall this witness, to the 702:26 extent the Court rules in my favor. That's all I have 802:26 to add. 902:26 At this point, I yield to my counsel, my 1002:26 opposing -- my favorite opposing counsel, Lisa Marcus 1102:26 of the Department of Justice. 1202:26 MS. MARCUS: Thank you, Mr. Neal, for that 1302:26 description of our conversation and your views. Thank 1402:26 you also for what I view -- what I view to be 1502:26 productive conversation during the lunch break. 1602:27 I think it's my understanding that our plan 1702:27 generally today is to proceed with this deposition, 1802:27 that you will ask the questions that you intend to ask 1902:27 of this witness. 2002:27 I will state, as necessary, any objections 2102:27 I have for the record. I will, as necessary and 2202:27 consistent with the Federal Rules of Civil Procedure, 2302:27 instruct the witness not to answer questions that seek 2402:27 privilege information or questions that pertain to our 2502:28 anticipated motion for a protective order.

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Page 78 102:28 With respect to the suggestion that we 202:28 agree to or that we go -- that we, otherwise, seek a 302:28 more restricted use and dissemination provision or 402:29 provisions for portions of this deposition, I confirm 502:29 that Mr. Neal and I discussed that idea during the 602:29 lunch break, and that it is a matter that I and my 702:29 colleagues, representing the defendants, are taking 802:29 under advisement at this time. 902:29 I will note that there is currently a 1002:29 protective order in this case that was amended, and 1102:29 there's a docket number, Document 65. That's the 1202:30 amended protective order. That protective order is 1302:30 generally applicable. In discovery, it contains 1402:30 provisions for identifying and designating information 1502:30 as confidential, subject to the protective order. 1602:30 The idea that Mr. Neal raised was to have 1702:30 some more -- even more restricted restriction set a 1802:30 protocol on use or dissemination for portions of the 1902:30 testimony, which is something that we will consider, it 2002:30 may not be necessary, and, ultimately, it may not -- 2102:31 the idea may not address the concern of making sure 2202:31 that the proceeding is within the scope of the 2302:31 discovery rules, which are broad, but have limits as to 2402:31 the scope of discovery -- permissible discovery. 2502:31 Mr. Neal and I made some comments earlier

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Page 79 102:31 today on the record, in this deposition, with respect 202:31 to the plaintiffs' document request, the subpoena 302:31 issued to SSA Malone, and FBI's document productions. 402:32 And at this time, I do not have more to add on that 502:32 topic. 602:32 Again, I thank Mr. Neal and Ms. Manoranjan, 702:32 his colleague, who is here, for our professional and 802:32 productive dialogue. And I think, collectively, we 902:32 will attempt to build a record here so that if either 1002:33 side needs to present anything to the Court, the scope 1102:33 of our discovery dispute will be as limited as possible 1202:33 and as clear as possible. 1302:33 MR. NEAL: One clarification. I believe 1402:33 the protective order that is in place today is 1502:33 sufficient to address the needs and concerns of the 1602:33 Department of Justice. Ms. Marcus has stated her 1702:33 position that she has additional considerations. 1802:33 But Ms. Marcus was correct that I did offer 1902:33 and will, nonetheless, entertain more restricted 2002:33 provisions in either an amended or new protective order 2102:33 to allow for this line of questioning to proceed 2202:33 without instructions to the witness not to answer. 2302:33 With that, shall we begin? 2402:34 MS. MARCUS: Thank you. 2502:34

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Page 138 105:06 205:06 Q emails that 305:07 were sent from, and received by, that email account, 405:07 correct? 505:07 MS. MARCUS: Objection, relevance, form. 605:07 MR. NEAL: I will state these are the 705:07 emails that were discussed by anonymous officials, 805:07 military officials, and law enforcement officials that 905:07 form the basis of our Privacy Act complaint. I can't 1005:07 think of a line of inquiry that's more relevant than 1105:07 those questions. 1205:07 MS. MARCUS: That statement assumes facts 1305:07 not in evidence, but that statement is not part of your 1405:07 question. The witness may proceed with answering the 1505:07 question. 1605:07 BY MR. NEAL: 1705:07 Q Agent Malone, what emails did you review? 1805:07 MS. MARCUS: Objection, relevance, form. 1905:07 And that's a much broader question than the last one. 2005:07 MR. NEAL: Different question. 2105:08 MS. MARCUS: Hold on. I'm going to object 2205:08 the witness -- I'm going to instruct the witness not to 2305:08 answer on the basis of the law enforcement privilege 2405:08 and probably as connected to the motion for a 2505:08 protective order, anticipated.

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Page 139 105:08 MR. NEAL: That instruction cuts off 205:08 another line of inquiry that I have regarding what he 305:08 reviewed, who else reviewed the emails, why they 405:08 reviewed them, and how they were disseminated and 505:08 circulated within the FBI and perhaps other agencies 605:09 and departments of the U.S. government, so I will move 705:09 forward. 805:09 MS. MARCUS: Wait a second. Hold on. I 905:09 want to be clear that the FBI will not be reproducing 1005:09 this witness voluntarily. I have been very patient, 1105:09 and I have tried very hard to be thoughtful. And if I 1205:09 may borrow a term from the other plaintiff in this 1305:09 case, I have tried to be surgical with respect to my 1405:09 objections and my instructions. 1505:09 So it's your decision. It's your 1605:09 deposition. You may proceed with the questions that 1705:09 you want to ask. I continue to think that it makes 1805:10 sense for you to take this opportunity to ask what you 1905:10 want of Mr. Malone, SSA Malone, given that this is the 2005:10 day of his deposition, and we might endeavor to limit 2105:10 the scope of our disagreements, as we have, and create 2205:10 a record demonstrating what specific questions you have 2305:10 that are beyond the scope of discovery and allowing 2405:10 those questions, within the scope of discovery and Rule 2505:10 26, to proceed.

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Page 140 105:10 MR. NEAL: With all due respect, you do not 205:10 determine the scope of discovery within the meaning of 305:11 Rule 26. That's not found in Rule 26. It's not found 405:11 in Rule 30. It's not found in the case law. You are 505:11 in a position to assert a privilege and provide an 605:11 instruction not to answer. 705:11 I accept, in part, your assertion of 805:11 privilege. I don't agree with it, but I accept that as 905:11 a basis to instruct the witness. However, I don't want 1005:11 to let that statement go unremarked upon, because 1105:11 you're including a relevance component to my question. 1205:11 MR. TYLER: Why don't we take a break? 1305:11 MR. NEAL: Let's stay on the record. Let 1405:11 me just say, I'm done with the deposition. I believe 1505:11 I'm being met with obstruction. The DOJ disagrees, for 1605:11 reasons Ms. Marcus stated. I will reserve my rights to 1705:11 revisit my line of questioning with the witness at a 1805:11 later date, to the extent allowed by Judge Jackson. 1905:11 MR. TYLER: It's a bit premature. Why 2005:12 don't we take a break? 2105:12 MR. NEAL: Off the record. 2205:14 (There was a brief recess taken.) 2305:22 MS. MARCUS: We are on the record 2405:22 currently. I would like to state the following -- 2505:22 MR. NEAL: Please note when I leave the

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Page 141 105:22 room, Ms. Court Reporter. I appreciate your efforts 205:22 today. Thank you. We will be sure to use you on a 305:22 subsequent date. 405:22 MS. MARCUS: I do not object to any 505:22 question about whether or not SSA Malone reviewed 605:23 705:23 . The most immediate question was 805:23 very broad. Given the breadth, I needed to object, and 905:23 I needed to preserve, at minimum, privilege, because 1005:23 there is privilege that applies to what a SA, a 1105:23 supervisory special agent, or then special agent, 1205:23 reviews. 1305:23 And the question that was most recently 1405:23 asked was: "Agent Malone, what emails did you review?" 1505:23 I stated my objection, and on the basis of a very broad 1605:23 question, instructed him not to answer because that 1705:23 broad, broad question is not restricted by time or 1805:23 subject, does call for information that is protected by 1905:24 the law enforcement privilege. 2005:24 However, it is my view that this deposition 2105:24 should continue, that -- I think it is relevant to know 2205:24 whether Agent Malone -- potentially, it's relevant to 2305:24 know whether Agent Malone reviewed the -- you know, 2405:24 reviewed emails from the @yahoo.com. 2505:24 I am inviting further inquiry of this

Elisa Dreier Reporting Corp. (212) 557-5558 950 Third Avenue, New York, NY 10022

Page 142 105:24 witness. I would ask Mr. Neal to please consider 205:24 taking a break, if he thinks that would be useful. He 305:24 had previously represented to me that he had 405:25 approximately one hour of questions on SSA Malone's 505:25 interaction or potential interaction with the media. 605:25 He has not. He has not pursued that line of 705:25 questioning to this point. 805:25 I am encouraging everybody to stay focused 905:25 on the current deposition and allow it to proceed. 1005:25 MR. NEAL: Counsel's repeated objections, 1105:25 counsel's repeated speaking objections, counsel's 1205:25 repeated breaks, counsel's repeated instructions of the 1305:25 witness not to answer my questions, despite my offer 1405:26 during lunch to keep the transcript under seal and even 1505:26 for attorneys' eyes only, has made it impossible for me 1605:26 to proceed with my deposition and made it impossible 1705:26 for me to adequately represent my clients' interests in 1805:26 taking this witness' deposition. 1905:26 For all the reasons I stated, I reserve my 2005:26 rights. I want to thank everyone for their time. 2105:26 Please note the time that this deposition, in my view, 2205:26 has concluded. 2305:26 I'm sorry. One last point. I'll be making 2405:26 a request, to the extent I have to under the protective 2505:26 order, I'm not sure, but I'll be making a request going

Elisa Dreier Reporting Corp. (212) 557-5558 950 Third Avenue, New York, NY 10022

Page 143 105:26 forward that all future depositions be videotaped. 205:26 Thank you. Thank you, everyone. 305:26 Mr. Malone, thank you. 405:26 MS. MARCUS: I would ask the court reporter 505:27 to please state for the record the length of this 605:27 deposition. I will note for the record that the 705:27 attorneys for Mrs. Kelley, and Mr. Kelley are 805:27 currently leaving the room. 905:27 And I would like to put on the record, 1005:27 again, the length of the deposition, because it's my 1105:27 understanding that this deposition is limited to seven 1205:27 hours on the record in one day. Let me just represent 1305:28 for the record that I understand that the determining 1405:28 of how much time has been on the record involves a 1505:28 process. 1605:29 Let me do the following: I would like to 1705:29 strike my last statement asking the court reporter to 1805:29 state for the record, and instead ask the court 1905:29 reporter to please provide a transcript with the 2005:29 timestamping indicated on the transcript to allow the 2105:29 parties to calculate the time expended on the record 2205:29 during today's deposition thus far. 2305:29 I need to confer briefly with my 2405:29 co-counsel. I'm going to go off the record before I do 2505:30 so and may come back on the record to make another

Elisa Dreier Reporting Corp. (212) 557-5558 950 Third Avenue, New York, NY 10022

Page 144 105:30 statement. 205:30 (A discussion was held off the record.) 305:30 MS. MARCUS: Thank you. I understand from 405:30 plaintiffs' counsel's comments and actions that this 505:31 deposition is now over. We will read and sign. 6 (Deposition concluded at 5:31 p.m.) 7 8 9 10 11 12 13 14 15 16 17 18 1905:30 20 21 22 23 24 25

Elisa Dreier Reporting Corp. (212) 557-5558 950 Third Avenue, New York, NY 10022

From: Adina Jick Sent: Friday, July 17, 2015 4:00 PM To: Roni Gross @hstrategies.com) Subject: ***FW: Confidential

-----Original Message----- From: Jill G. Kelley @icloud.com] Sent: Sunday, June 02, 2013 4:40 PM To: Matthew Hiltzik Subject: Confidential

Tomorrow is your BFF's Bl!thcli2ly! !

And for my birthday present we (Me & lawyers at Sidley Austin, DC) are filing a lawsuit against the gov't for leaking my name -and leaking false and defamatory information about me. (since I got the first email from Paula one year ago that day-so it's "special" Loi!)

It's going to be earth shaki ng"' because it says many stuff nevei publicly disclosed yet ....

Can you represent me or advise me with PR -since it's going to be a media frenzy tomorrow (since combines current WH scandals)

We file it tomorrow at 5pm, but as soon as we have it finalized (around 2pm) we will give a confidential copy to "friendly media" to get an exclusive before it goes public and viral

It's going to make news with all the disclosures that caused the resignation of Petraeus and sudden retirement of General Allen. lt's going to be news that feeds the interests of the historical, political, intellectual ..... and even the TMZ crowd!

HS000068 Case 1:13-cv-00825-ABJ Document 73-8 Filed 10/15/15 Page 1 of 1 From Petraeus Scandal, an Apostle for Privacy - The New York Times Page 1 of 5 Case 1:13-cv-00825-ABJ Document 73-9 Filed 10/15/15 Page 1 of 5

http://nyti.ms/JCQsXL

U.S. From Petraeus Scandal, an Apostle for Privacy

By JENNIFER STEINHAUER JAN. 5, 2014 TAMPA, Fla. — Jill Kelley still glances around for cameras before she leaves her large, six-columned house on Hillsborough Bay, and she rarely goes to the grocery store. Since November 2012, when the government released her name in connection with a scandal that brought down the head of the Central Intelligence Agency, Ms. Kelley has yet to return to her children’s schools, she said, and could not even summon the courage to go to their holiday plays.

Desperate to restore her reputation, resume her old life and, she said, protect others from similar ordeals, Ms. Kelley is, with the help of some of the nation’s most renowned and expensive privacy lawyers, suing three federal agencies and a spate of current and former Pentagon and F.B.I. officials. She asserts that they violated her privacy, defamed her and improperly gained access to her email without her consent, all in a way that hurt her reputation and livelihood.

Reclusion remains an uncomfortable cloak for Ms. Kelley, 38, who just over a year ago was the social spindle of MacDill Air Force Base here: a woman known for her lavish parties and connections with the top leaders of United States Central Command, which oversees American military operations in the Middle East. Commanders and their wives were regulars at her dining room table, where

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Champagne flowed under a huge oil painting of Ms. Kelley and her husband, Scott T. Kelley, a cancer surgeon.

“People don’t understand what I went through,” Ms. Kelley said in a recent interview, conducted in her breakfast room with breathtaking views of Hillsborough Bay. “I am still suffering the consequences from the bad acts and false and untrue headlines. They created a sideshow at my expense.” Her demeanor vacillated between cheerful, determined and pained; she occasionally wiped away tears.

In a lawsuit that is half legal document and half news release, Ms. Kelley seeks damages and a formal apology from the government for revealing her identity after she reported what she assumed was a crime: threatening emails sent by a woman with whom Gen. David H. Petraeus, then director of the C.I.A., was having an affair. The suit, filed in United States District Court for the District of Columbia, is also an attempt by Ms. Kelley to tell her side of a story that she says was distorted and dismissed, leaving her family as collateral damage.

A spokesman for the F.B.I., Michael P. Kortan, declined to comment on the specifics of the case, citing the continuing litigation. “We approach all investigations equally and in accordance with guidelines and the law,” he said.

Several privacy experts said that while Ms. Kelley was an unlikely advocate for the right to live free from the public’s glare, her claims of government overreach would resonate, particularly as the nation debates the proper balance of personal privacy and national security.

“This case shows that privacy is really important and that the legal rules we have are not tailored for modern technology,” said Neil M. Richards, a privacy law expert at Washington University in St. Louis. “I think it shows also how so many questions that we deal with on an everyday basis, from government to criminal investigations, all deal with the issue of privacy.”

Thirteen months ago, the government revealed that the Kelleys, who are co- plaintiffs in the lawsuit, had received a series of menacing emails from Paula Broadwell, who was having an affair with General Petraeus. F.B.I. investigators examined all of Ms. Kelley’s emails as a routine step and in the process discovered

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what Pentagon officials said was potentially “inappropriate communication” with Gen. John R. Allen, then the top American commander in Afghanistan.

The emails between General Allen and Ms. Kelley numbered in the hundreds and covered two and a half years starting in 2010, when General Allen was deputy commander of Central Command in Tampa. He has since retired from the military.

Although an inquiry by the Pentagon inspector general cleared General Allen of any wrongdoing, Ms. Kelley morphed from entertainer to exile. She was banned from the Air Force base and stripped of her (essentially meaningless) diplomatic titles, including honorary consul to South Korea.

“Just because you’re stalked by a mistress doesn’t mean you are one,” Ms. Kelley said in the interview. “It’s not contagious.”

Her husband said he had never suspected his wife of inappropriate dalliances with General Allen. “I saw the emails,” Dr. Kelley said. “I knew it was complete nonsense.”

When the emails were discovered, a law enforcement official called them “sexually explicit,” Pentagon officials described them as embarrassing, and General Allen’s associates said they were innocuous and contained little beyond language like “you’re a sweetheart.” Ms. Kelley, too, describes them as innocuous, but the government has refused to release them.

The Kelleys moved to Tampa in 2001. At a charity dinner that year, Ms. Kelley met the wife of the deputy commander of Central Command, who invited her to dinner and asked if the Kelleys might offer their home for social events for the families of foreign military officials based in Tampa, Ms. Kelley said.

“Because I grew up in a war-torn country, I had the honor to thank them and show our appreciation,” she said. (Ms. Kelley moved to the United States from Beirut, Lebanon, as an infant in 1976 and grew up in the Philadelphia area, where her mother owned restaurants and her father was an insurance broker. She speaks fluent Arabic and Spanish.)

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The informal gatherings soon became large, catered parties, including holiday meals for generals and receptions for the spouses of deployed personnel. Ms. Kelley said she would have monthly dinners in her home with General Petraeus, who was head of Central Command from 2008 to 2010, as well as with his deputy at the time, General Allen. If Ms. Kelley learned anything of national security interest over her baked chicken, her lawyers have told her not to say.

After her good times in Tampa ended in November 2012, a low point came, she said, when she and her husband went to bed and turned on “Saturday Night Live” to unwind, only to be confronted with a parody of her.

Ms. Kelley and her lawyers said the lawsuit touched on an array of issues: what the government can access, how it disseminates information about private citizens, whether it protects people who report crimes, what constitutes leaking, and the laws governing public records.

“Here, the government did not adhere to its own standards for avoiding electronic intrusion into innocent citizens’ lives,” said Alan Charles Raul, a lawyer for the Kelleys. “Instead, they turned around and blamed the victim. If privacy rights mean anything, it means the government must be held accountable for protecting people who committed no crime or wrongdoing.”

Privacy lawyers said the outcome of the case would rest in part on whether the agencies involved were subject to exemptions under the Privacy Act of 1974, and on how the court interpreted arcane aspects of laws governing electronic records.

“They made a pretty good facial claim that the government violated the ‘no disclosure without consent’ rule,” said Paul M. Schwartz, director of the Berkeley Center for Law and Technology at the University of California, Berkeley, School of Law.

The court will also examine whether Ms. Kelley suffered distress and loss of income.

Ms. Kelley’s fortunes differ starkly from those of General Petraeus, who has teaching positions at the University of Southern California, the City University of

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New York and Harvard’s Kennedy School of Government, and is chairman of Kohlberg Kravis Roberts’s KKR Global Institute. (He resigned from his C.I.A. post after the scandal unfolded.) General Allen is now an adviser to Secretary of State John Kerry on the Middle East peace talks. Ms. Broadwell, who was not charged with a crime, is living with her husband and two children in Charlotte, N.C., teaching, writing and working with groups that help veterans.

Ms. Kelley remains insistent that she did nothing wrong. “I was seeking protection,” she said, “not publicity.”

A version of this article appears in print on January 6, 2014, on page A1 of the New York edition with the headline: From Petraeus Scandal, an Apostle for Privacy.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GILBERTE JILL KELLEY et al.,

Plaintiffs, v. Civil Action No. 13-cv-825 (ABJ)

THE FEDERAL BUREAU OF INVESTIGATION et al.,

Defendants.

[PROPOSED] ORDER

Defendant FBI’s Motion for a Protective Order, having come before the Court, and the

Court having considered that motion, it is hereby

ORDERED that the motion is granted;

IT IS FURTHER ORDERED that any further FBI-related discovery is limited 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.

IT IS FURTHER ORDERED that FBI deponent Adam Malone need not answer questions at deposition that are inconsistent with the scope of permissible FBI-related discovery articulated above.

______UNITED STATES DISTRICT JUDGE