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Attkisson v. Holder

United States District Court, District of Columbia

July 3, 2015

ERIC HOLDER, et al., Defendants.


EMMET G. SULLIVAN, District Judge.

Sharyl Attkisson is an investigative reporter who lives in Leesburg, Virginia, along with her husband, James Attkisson, and their daughter, Sarah Attkisson. See First Am. Compl., ECF No. 30 ¶¶ 4-6. They bring this action against former Attorney General Eric Holder; former Postmaster General Patrick Donahoe; and unknown agents of the Department of Justice, the United States Postal Service, and the United States. Plaintiffs allege violations of rights guaranteed to them by the United States Constitution and bring this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Pending before the Court is the plaintiffs' motion for leave to conduct expedited discovery. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the Court DENIES plaintiffs' motion.

I. Background

A. Factual Background[1]

From 2011 to 2013, Ms. Attkisson prepared numerous high-profile stories for CBS News on subjects including the "Fast and Furious" incident and the 2012 attack on the United States compound in Benghazi, Libya. See First Am. Compl., ECF No. 30 ¶ 4. Plaintiffs allege that in mid-2011, they "began to notice anomalies in numerous electronic devices" in their home, including a laptop and desktop computer "turning on and off at night, " the home security system "chirping daily at different times, " phone trouble, and television interference. Id. ¶ 22. In January 2012, plaintiffs' internet service "began constantly dropping off." Id. ¶ 24. In October 2012, the plaintiffs experienced increased interference with home and mobile phone lines, computers, and their television. Id. ¶ 36. By November 2012, plaintiffs claim that their phone lines "became nearly unusable because of... regular interruptions and interference, making telephone communications unreliable, and, at times, virtually impossible." Id. ¶ 39.

Ms. Attkisson contacted Verizon, her service provider, numerous times between January 2012 and January 2013 to try to remedy these issues. Id. ¶¶ 24, 43. In January 2012, Verizon replaced plaintiffs' router, which did not resolve the issue. Id. ¶ 24. Verizon sent a representative in March 2012 to replace the router again; this still did not resolve the issue. Id. ¶ 28. In December 2012, a "contact [of Ms. Attkisson's] with U.S. government intelligence experience" discovered an extra fiber optic cable on the exterior of her Verizon cable box. See id. ¶ 42. Ms. Attkisson contacted Verizon about this extra cable on December 31, 2012; although Verizon denied installing it, they dispatched a technician the next day to remove it. Id. ¶¶ 42-43. Ms. Attkisson requested that the technician leave the cable at her house, but when she returned home, the cable was not there and she could not reach the Verizon technician at the phone number he had provided. Id. ¶¶ 43-44. Verizon subsequently made several follow-up visits in January and February of 2013. Id. ¶ 45.

Ms. Attkisson also alleges that starting as early as June 2011, "an unauthorized party or parties remotely installed sophisticated surveillance spyware" on her computer. Id. ¶ 26. Though "unknown to Ms. Attkisson at the time, " these intrusions were revealed by later computer analyses. Id. Ms. Attkisson asserts that unknown parties were able to "transfer[] large numbers of records off [her] BlackBerry, " access her entire family's "e-mails, personal files, Internet browsing, passwords, execution of programs, financial records, [and] photographs." Id. Later analysis also allegedly indicated that in July 2012, "intruders remotely refreshed' the ongoing surveillance of Ms. Attkisson's" computers. Id. ¶ 31. This also revealed that in December 2012, intruders had remotely removed evidence of their intrusion from Ms. Attkisson's computers. See id. ¶ 41. Finally, the analysis identified "an unauthorized communications channel" on Ms. Attkisson's laptop linked to an internet protocol (IP) address associated with the U.S. Postal Service. See id. ¶ 61. Ms. Attkisson contacted a computer forensics expert on January 8, 2013 to analyze her laptop. Id. ¶ 46. This individual found "evidence of outside and unauthorized intrusion'... [which was] state-supported due to the sophisticated nature of the technology used." Id. The report further indicated that the intrusion likely lasted most of 2012 and allowed intruders to gain access to CBS network systems, which led Ms. Attkisson to notify her supervisor at CBS of the intrusions on her work laptop. Id. On February 2, 2013, an independent forensic computer analyst hired by CBS reported that he had found evidence of a "coordinated, highly-skilled series of actions and attacks" on Ms. Attkisson's laptop and desktop computers. Id. ¶ 47.

Ms. Attkisson filed a complaint with the Department of Justice's Inspector General, which informed her that the FBI denied having "any knowledge of any operations concerning Ms. Attkisson's computers or phone lines." Id. ¶¶ 49, 51. CBS subsequently hired an additional cyber security firm, which "confirmed that there was a highly sophisticated intrusion into Ms. Attkisson's computer, as well as remote actions taken in December, 2012, to delete all evidence of that intrusion." Id. ¶ 53.

The FBI began a separate inquiry in June 2013. Id. ¶ 57. In January 2014, Ms. Attkisson released her desktop computer to the DOJ Inspector General for investigation. Id. ¶ 59. The DOJ Inspector General initially did not release a written report and did not respond to Ms. Attkisson's FOIA request, although the Inspector General released a partial report prior to Ms. Attkisson's testimony to a Senate panel in early 2015. See id. This report found no evidence of intrusion into Ms. Attkisson's desktop computer, but did note that there was "advanced mode computer activity" present on the computer. Id.

B. Procedural History

On December 30, 2014, plaintiffs filed suit in the Superior Court of the District of Columbia against then-Attorney General Eric Holder, Postmaster General Patrick Donahoe, and unknown agents of the Department of Justice, the United States Postal Service, and the United States as "Doe" defendants, all in their individual capacities. Mr. Holder and Mr. Donahoe appeared specially on February 18, 2015 to remove the case to this Court. See Notice of Removal, ECF No. 1.

On February 23, 2015, Ms. Attkisson filed her first motion for expedited discovery. See First Mot. for Expedited Disc., ECF No. 5. Mr. Holder and Mr. Donahoe appeared specially to oppose this motion. See Opp. to First Mot. for Expedited Disc., ECF No. 11. The Court reviewed these pleadings and determined that "there is some ambiguity as to whether and when the named defendants in this case were served." Minute Order of March 13, 2015. Accordingly, the Court directed the plaintiffs "to file proof-of-service affidavits regarding their service on the named defendants by no later than March 16, 2015." Id. The plaintiffs filed affidavits regarding Mr. Holder and Mr. Donahoe on March 16, 2015. See Holder Service Aff., ECF No. 15; Donahoe Service Aff., ECF No. 16.

The following day, the Court denied plaintiffs' first motion for expedited discovery without prejudice. See Minute Order of March 17, 2015. For one, the Court found, "[p]laintiffs have not filed proof of service on the other individuals and entities required by Federal Rule of Civil Procedure 4(i)(1) and 4(i)(3)." Id. "For that reason alone... it would be premature to begin any expedited discovery." Id. The Court also found that plaintiffs' request for expedited discovery was "overbroad":

[G]ood-cause to conduct "Doe Defendant" discovery must be tied to the particular limited discovery the plaintiff seeks (i.e. the plaintiff must show good cause for service of particular requests or discovery limited to particular specified topics). For example, a Complaint suing a Doe Defendant law-enforcement officer for alleged assault might seek to utilize information that is known about that officer, such as a unit to which the officer was assigned or the date and time of the incident, to form the basis for specific discovery requests targeted only at learning that officer's identity. Cf. Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir. 1997). In the case of copyright-infringement lawsuits involving Doe Defendants, expedited discovery to learn the identity of the alleged copyright infringer often takes the form of narrow requests to the Internet Service Provider affiliated with the Internet Protocol address that did the alleged infringing. See, e.g., Malibu Media, LLC v. Doe, No. 14-129, 2014 WL 2206397, at *2-3 (D.D.C. May 28, 2014). In this case, aside from a conclusory statement that the plaintiffs seek "to serve limited, immediate discovery... to determine the true [identities] of the Doe Defendants, " the Court has been provided no ...

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