Bissonnette v. Podlaski
| Decision Date | 05 June 2018 |
| Docket Number | Cause No. 1:15-cv-00334-SLC |
| Parties | MATTHEW BISSONNETTE, Plaintiff, v. KEVIN PODLASKI, et al., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Before the Court is a motion for summary judgment or, in the alternative, for partial summary judgment and a supporting memorandum, together with several exhibits, filed by Defendants Kevin Podlaski ("Podlaski"), an attorney, and Carson Boxberger, LLP ("Carson Boxberger"), a law firm (together "Defendants"), seeking judgment as a matter of law on Plaintiff Matthew Bissonnette's ("Bissonnette") claims for legal malpractice and breach of fiduciary duty under Indiana law.1 (DE 137-DE 139). Bissonnette timely filed a response brief, also submitting several exhibits (DE 140; DE 141; DE 150), and Defendants filed a reply (DE 142). On February 8, 2018, the Court heard oral argument on the motion. (DE 147).
Also before the Court is Defendants' motion seeking to preclude Bissonnette's expert, Mark Zaid, Esq. ("Zaid"), pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), filed together with a supporting brief and exhibits. (DE 76-DE 78). Bissonnette timely filed a response, also submitting several exhibits (DE 104; DE 105; DE 109), and Defendants filed a reply (DE 121). The motion is now fullybriefed, including the filing of sur-responses and sur-replies. (DE 124; DE 126; DE 128; DE 129; DE 131; DE 132).
Defendants' motion for summary judgment and motion to preclude are ripe for ruling. For the reasons set forth below, Defendants' motion for summary judgment will be GRANTED in part and DENIED in part, and their motion to preclude expert Zaid will be DENIED.
Bissonnette is a former Navy SEAL who authored the book, "No Easy Day" (the "Book"), under the pseudonym Mark Owen. (DE 14 ¶ 5; DE 140 at 31). The Book gives Bissonnette's first-hand account of Operation Neptune Spear, the raid that resulted in the death of Osama Bin Laden. (DE 14 ¶ 11; DE 140 at 31).
In late 2011, Bissonnette connected with Elyse Cheney ("Cheney"), who was affiliated with Dutton, a division of Penguin Group (USA), Inc., a publishing corporation. (DE 138-1 at 27-29; DE 138-2 at 22; DE 138-3 at 26-27). Bissonnette, Cheney, and Benjamin Sevier ("Sevier"), the editor in chief of Dutton, agreed to produce a book that would detail Bissonnette's account of Operation Neptune Spear. (DE 138-2 at 23; DE 138-3 at 26-27). The three enlisted the help of a ghost writer, Kevin Maurer ("Maurer"). (DE 138-2 at 27-28).
Cheney began "looking for a lawyer . . . to help [Bissonnette] follow whatever his legal obligations were in regards to the publication [of the Book]," and she was put in touch with Podlaski as somebody who could do so. (DE 138-3 at 33; see also DE 138-2 at 21; DE 138-13 at 6; DE 138-14 at 6). Podlaski was a partner at Carson Boxberger at the time. (See, e.g., DE 14 ¶¶ 6-7; DE 150 at 4-8; DE 138-4 at 8). Podlaski demonstrated a familiarity with thegovernment's non-disclosure agreements ("NDA") regarding confidential material, and represented that he had previously assisted a former Special Forces member in publishing a book. (DE 138-1 at 40, 85; DE 138-3 at 7, 33; DE 138-3 at 54). Bissonnette believed that Podlaski possessed familiarity with issues he would encounter in writing the Book, and the two began talking on the phone in November or December 2011.3 (DE 138-4 at 9; DE 138-13 at 8; DE 138-14 at 8).
By January 11, 2012, Bissonnette agreed to hire Podlaski. (DE 138-1 at 42). On January 17, 2012, Defendants and Bissonnette executed an Engagement/Representation Letter ("Engagement Letter"). (See DE 150 at 4-8). In the Engagement Letter, Podlaski agreed to provide the following services:
Reviewing the publishable manuscript of [Bissonnette's] career to ensure [his] compliance with [his] obligations under any agreements [he] may have signed with the U.S. Government not to release classified or classifiable information or otherwise compromise the national security interests of the United States, as those terms are used, intended or understood in Standard Form 312, Confidential Information Non-Disclosure Agreement (["]CINA"), or any other such agreements.
(DE 150 at 4). On February 10, 2012, Bissonnette signed an agreement with Dutton to draft the Book. (DE 138-6).
Bissonnette submitted a manuscript of the Book to Podlaski on or around June 21, 2012, so that Podlaski could screen it for classified information. (DE 138-14 at 27). Podlaski and Bissonnette had other communications in June 2012, but Podlaski did not bill Bissonnette for these communications, as it is was not his practice to bill or memorialize every interaction with Bissonnette. (DE 138-4 at 11, 19). According to Bissonnette, Podlaski advised him not to submit a manuscript of the Book for prepublication review. (See, e.g., DE 138-1 at 44, 48; DE 138-14 at 9; DE 150 at 32). The Book was due to be released for sale on September 11, 2012. (DE 138-1 at 55).
It is not clear how, but at some point in mid or early August 2012, United States Special Operations Command or SOCOM, and United States Joint Special Operations Command, and perhaps other entities within the military or intelligence community obtained advance copies of the Book. (DE 138-1 at 14; DE 138-2 at 43). Beginning in late August, certain media outlets and investigative journalists purported that the government had taken the position that Bissonnette had violated NDAs in publishing the Book and that the Book contained classified information. (DE 138-1 at 55-56; DE 138-2 at 45; DE 138-3 at 45; DE 150 at 30-31). At some point, United States Joint Special Operations Command and Maurer discussed the government's concerns. (DE 138-2 at 43). On August 29, 2012, a source reported to Sevier that the Department of Defense (the "DoD") would not seek an injunction against releasing the Book. (DE 138-2 at 46). Nevertheless, Podlaski insisted that Bissonnette was not required to submit a manuscript of the Book for prepublication review and that the Book did not contain classified material. (DE 150 at 26-28, 29). Around that time, Dutton decided to release the Book for sale a week early, on September 4, 2012. (DE 138-2 at 48).
The rumors and reports of the government's concerns were realized on August 30, 2012,when Jeh Johnson, General Counsel of the DoD, faxed Dutton a letter to the attention of "Mr. Mark Owen" (the "Johnson Letter"). (DE 150 at 17-25; DE 138-9). The Johnson Letter explained that Bissonnette had signed two NDAs on January 24, 2007, that remained in force after Bissonnette had left active duty because Bissonnette signed a Sensitive Compartmented Information Debriefing Memorandum on April 20, 2012 (the day Bissonnette left active duty), acknowledging the NDAs. (DE 150 at 18). In these NDAs, Bissonnette had, among other things:
(i) acknowledged [his] awareness that disclosure of classified information constitutes a violation of federal criminal law; (ii) agreed to submit [his] manuscript for pre-publication security review, and to obtain permission from the agency before publishing it, and (iii) assigned to the U.S. Government "all royalties, remuneration, and emoluments that have resulted, will result or may result from a disclosure, publication or revelation of classified information not consistent with the terms of [that agreement]."
(DE 150 at 18). The DoD claimed that Bissonnette was in "material breach and violation" of the NDAs by publishing and releasing the Book for sale. (DE 150 at 18). The letter warned that "[f]urther public dissemination" of the Book would aggravate Bissonnette's breach. (DE 150 at 18). The DoD was considering "all remedies legally available" in light of Bissonnette's alleged breach of the NDAs. (DE 150 at 18).
Attached to the Johnson Letter were several documents including: a personal attestation of Bissonnette's loyalty and duty to maintain the secrecy of classified information; a standard Classified Information Non-Disclosure Agreement ("CINA"), signed by Bissonnette on January 24, 2007; and DD Form 1847-1, signed by Bissonnette on January 24, 2007, and acknowledged again on April 20, 2012. (DE 150 at 17-25; DE 151). Under DD Form 1847-1, Bissonnette agreed that he would not publish or disclose in any form, a work containing SpecialCompartment Information ("SCI") "or description of activities that produce or relate[] to SCI or that [Bissonnette] ha[d] reason to believe [were] derived from SCI . . . ."4 (DE 150 at 22; DE 151 at 5). SCI is defined in DD Form 1847-1 as "information or material protected within Special Access Programs . . . ." (DE 150 at 22; DE 151 at 5).
The next day, Bissonnette hired attorney Bob Luskin ("Luskin") to handle "the new issue that seemed to have materialized" from the Johnson Letter. (DE 138-1 at 12). Luskin took the lead in writing a response to the Johnson Letter (DE 138-1 at 13; DE 138-11) with Podlaski's input (DE 150 at 41-44). Luskin sent the response to the DoD on August 31, 2012. (DE 138-11). In the response, Luskin claimed that Bissonnette "sought legal advice about his responsibilities before agreeing to publish his book and scrupulously reviewed the work to ensure that it did not disclose any material that would breach his agreements or put his former comrades at risk." (DE 138-11).
Podlaski testified at his deposition that on or around August 30, 2012, Luskin instructed him not to speak to Bissonnette unless Luskin was present; giving Podlaski the sense that he was fired. (DE 138-4 at 16). Luskin testified that he instructed Podlaski early on not to speak to Bissonnette about facts involving the events precipitating the Johnson Letter in Luskin's absence, because Podlaski would likely be a witness in any legal proceeding related to issues identified in the Johnson Letter and Luskin did not want Podlaski's or Bissonnette's testimony to be tainted. (DE 138-12 at 37...
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