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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT HOPKINS, III,

Plaintiff,

v.

DEPARTMENT OF DEFENSE,

Defendant.

No. 3:22-CV-00706-E

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO 

AUTHORIZE HIS COUNSEL TO ACCESS HIS INTENDED EVIDENCE

Plaintiff Dr. Robert Hopkins’s motion to force Defendant the Department of 

Defense to allow him to disclose a document—the “Draft Response”—to his 

counsel that the Department has determined contains and would further expose 

classified information is simply his latest effort to stay, modify, or otherwise 

disrupt the orderly course of these prepublication review proceedings. See 

generally Def.’s Combined Opp. to Pl.’s Mot. to Stay Summ. J. Br. & Mot. to

Partially Unseal Classified App., ECF No. 39 at 2-5. 

As the Department has explained, time and again, courts in prepublication 

review cases “first inspect the manuscript and consider any pleadings and 

declarations filed by the Government, as well as any materials filed by [the 

plaintiff]” before determining whether it can “resolve the classification issue 

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without the assistance of plaintiff’s counsel.” Stillman v. CIA, 319 F.3d 546, 548-

49 (D.C. Cir. 2003). “Only then should it decide whether to enter an order granting 

[plaintiff’s counsel] access to the manuscript and, if similarly necessary, to the 

Government’s classified pleadings and affidavits.” Id. at 549. Indeed, that is why 

the Court has repeatedly stated that it will “consider Defendant’s motion for 

summary judgment before determining how to proceed with this case.” Order, ECF 

No. 28; see also Order, ECF No. 24. The Court should deny Dr. Hopkins’s latest 

motion and set a deadline by which he must respond to the Department’s motion 

for summary judgment.

The arguments presented in Dr. Hopkins’s latest motion either reprise 

contentions the Court has already rejected or are otherwise meritless.

First, Dr. Hopkins is incorrect that the presumption of access to judicial 

records applies to the Draft Response, see Pl.’s Mem. of P. & A. in Supp. of His 

Mot. to Authorize his Couns. to Access His Intended Evid. at 1-4, ECF No. 42-1 

(“Mot.”), which has not yet even been filed with the Court. See, e.g., Chi. Trib. Co. 

v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) (explaining 

that presumption only applies to documents “which may properly be considered 

public or judicial records”). More fundamentally, the Department has concluded 

that the Draft Response contains and would further expose classified information, 

and so cannot be released in any form. Under his non-disclosure agreement, Dr. 

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Hopkins is therefore prohibited from filing the Draft Response on the public record

(and from providing it to his counsel). Nevertheless, as stated in its previous 

opposition, the Department will transmit the Draft Response (and/or any other 

materials Dr. Hopkins wishes to submit) to the Court for its ex parte, in camera

consideration, along with an accompanying classified declaration justifying the 

Department’s objections to the document’s release. At that point, the Court will be 

well-positioned to determine whether the document should be provided to counsel 

or otherwise unsealed for public access, bearing in mind that there is no 

presumption of public access to “traditionally nonpublic government information.” 

McGehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983).

Second, Dr. Hopkins asserts that the Draft Response is not protectable. 

Again, the Department will explain why Dr. Hopkins is wrong when it submits the 

document and accompanying classified declaration to the Court. But certain 

assertions presented in Dr. Hopkins’s motion are either incorrect or highly 

misleading. To start, far from consisting solely of summaries “generally only a few 

words long,” Mot. at 5, the Draft Response often contains redacted sections of text 

from Dr. Hopkins’s manuscript in full. To release the Draft Response would, in 

many cases, directly expose the very material the Department has determined is 

classified.

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Moreover, the images from what Dr. Hopkins characterizes as “publicly 

available source[s,]” id. at 6, generally do not constitute official releases of the 

information at issue, and so either contain classified information themselves that he 

cannot republish, or would, in context, serve to inform an astute reader of the 

content of the redacted text in his manuscripts. For example, if the purportedly 

public source image states that “the sky is blue,” one would be able to deduce that 

the redacted text contains a similar statement—and thereby understand that Dr. 

Hopkins’s manuscript serves to confirm that fact. That is, in part, why the 

Department has concluded that the Draft Response, taken as a whole, would reveal

classified information and so cannot be released. “[E]ach individual piece of 

intelligence information, much like a piece of jigsaw puzzle, may aid in piecing 

together other bits of information even when the individual piece is not of obvious 

importance in itself.” Gardels v. CIA, 689 F.2d 1100, 1106 (D.C. Cir. 1982) 

(quoting Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980)). 

Dr. Hopkins is also incorrect that he may disclose information simply by 

claiming to have compiled it from public sources. While “republication by 

strangers” may “lend[] no additional credence” to unauthorized disclosures, former 

government employees “are quite different, for their republication of the material 

would lend credence to it, and, unlike strangers referring to earlier unattributed 

reports, they are bound by formal agreements not to disclose such information.” 

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Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975). No matter 

how “widely circulated” the information is, “[a]s long as it remains classified,” 

“there should be no further judicial inquiry.” Id. at 1370-71; see also Shaffer v. 

Def. Intel. Agency, 102 F. Supp. 3d 1, 9 (D.D.C. 2015) (“[T]he fact that 

information resides in the public domain does not eliminate the possibility that 

further disclosures can cause harm to intelligence sources, methods and 

operations.”) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990)).

Third, Dr. Hopkins argues that counsel in other prepublication review cases 

have been able to access classified information, and that his counsel needs access 

to the Draft Response to oppose the Department’s motion for summary judgment. 

Mot. at 12-14. But those arguments simply seek to relitigate the question of 

whether his counsel is entitled to access classified information. As Stillman 

instructs, the Court should consider whether to provide counsel with access to 

classified information only after it has inspected the parties’ submissions and 

determined whether it can “resolve the classification issue without the assistance of 

plaintiff’s counsel.” 319 F.3d at 548-49. If the Court concludes that it needs the 

assistance of counsel to assess the official disclosure issue, then it will be able to 

consider whether to grant counsel access to that Draft Response at that time. 

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For these reasons, the Court should deny Dr. Hopkins’s motion to grant his 

counsel access to the Draft Response and set a deadline by which Dr. Hopkins 

must oppose the Department’s motion for summary judgment.

Dated: March 4, 2024 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

MARCIA BERMAN

Assistant Branch Director

/s/ John T. Lewis

JOHN T. LEWIS (TX Bar No. 24095074)

LISA NEWMAN (TX Bar. No. 24107878)

Trial Attorneys

U.S. Department of Justice

Civil Division, Federal Programs Branch

1100 L Street NW

Washington, D.C. 20530

Tel: (202) 353-0533 

Fax: (202) 616-8460 

E-mail: john.t.lewis.iii@usdoj.gov 

Attorneys for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on March 4, 2024, a copy of the foregoing was filed 

electronically via the Court’s ECF system, which effects service upon counsel of 

record.

/s/ John T. Lewis

John T. Lewis

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