UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

Dallas Division

ROBERT HOPKINS, III, * 

 * 

Plaintiff, * 

 * 

 v. * Civil Action No. 3:22-cv-00706 (E) 

 * 

DEPARTMENT OF DEFENSE, *

 * 

Defendant. * 

 * 

* * * * * * * * * * * * * 

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF HIS MOTION TO AUTHORIZE HIS

COUNSEL TO ACCESS HIS INTENDED EVIDENCE

Case 3:22-cv-00706-E Document 42-1 Filed 02/12/24 Page 1 of 20 PageID 953
TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........................................................................ii 

ARGUMENT .................................................................................................1 

I. THE PRESUMPTION OF ACCESS APPLIES..........................1 

II. THE DRAFT RESPONSE IS NOT PROTECTABLE................4 

III. DOD’S INITIAL ARGUMENTS ARE WITHOUT MERIT ......8 

CERTIFICATE OF CONFERENCE ..............................................................15 

CONCLUSION ..............................................................................................16 

CERTIFICATE OF COMPLIANCE ..............................................................17 

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TABLE OF AUTHORITIES

Cases : Pages 

Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir. 1975) ........................13, 14

Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410 (5th Cir. 2021) .....................4

Brown & Williamson Tobacco v. FTC, 710 F.2d 1165 (6th Cir. 1983)............3

Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990)...........................................9

IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal Dist., 82 F.4th

402 (5th Cir. 2023) ...............................................................................4

June Med. Servs., LLC v. Phillips, 22 F.4th 512 (5th Cir. 2022) .....................4

Lawless v. DOD, No. 21-2859, slip op. (D.D.C. Mar. 6, 2023).......................14

Malacara v. Garber, 353 F.3d 393 (5th Cir. 2003) .........................................1

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

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978) ..................................3 

Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653 (3d Cir.

1991) ....................................................................................................3

Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) ................................3

Shaffer v. DIA, 102 F. Supp. 3d 1 (D.D.C. 2015)............................................8

Stillman v. CIA, 319 F.3d 546 (D.C. Cir. 2003)...............................................7

United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995)....................................2

United States v. Dunkel, 927 F.2d 955 (7th Cir. 1991)....................................1 

United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972)..............................7

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ARGUMENT

As an initial matter, Hopkins respectfully apologizes for the occasionally 

duplicative nature of this brief; the Court will undoubtedly recognize arguments 

and citations from other filings from earlier in this case. As will become selfevident, however, those arguments were made in different contexts than the one 

facing the Court now, and so it is in the interest of judicial economy and clarity to 

raise them herein in their totality rather than asking the Court to piece together the 

full argument from a patchwork of other filings. See Malacara v. Garber, 353 F.3d 

393, 405 (5th Cir. 2003) (“Judges are not like pigs, hunting for truffles buried in 

briefs.”) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).

Similarly, due to the peculiar way in which DOD responded to Hopkins’s 

motion to stay the briefing of its dispositive motion, in which it attempted to argue 

against this Motion before the Motion was even filed, Hopkins will spend some of 

this brief addressing the arguments raised in DOD’s preemptive effort. The Court 

should not, however, treat any arguments raised in Defendant’s opposition to that

motion as properly before the Court unless DOD raises them in this context of this

Motion. 

I. THE PRESUMPTION OF ACCESS APPLIES

While Hopkins has understandably not filed the Draft Response yet, it is

undisputed that he intends to do so, or at the very least to file a final version with 

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his opposition once his undersigned counsel has reviewed it. Moreover, DOD 

acknowledges that a version of the Draft Response will be part of the record, 

although it proposes that it should be allowed to provide the Draft Response to the 

Court instead of Hopkins being allowed to provide the final document intended to 

be used as evidence. (Def.’s Comb. Opp’n Pl.’s Mot. Stay Summ. J. Briefing & 

Mot. Part. Unseal Class. App’x, Dkt. #39, at 9 (filed Jan. 24, 2024) [hereinafter 

DOD’s Stay Opp’n].) While Hopkins contends that he and not DOD should 

provide his own evidence to the Court in the form he believes appropriate when he 

files his opposition to DOD’s dispositive motion, he does request that the Court 

order DOD to provide the Draft Response to it in camera and ex parte for the 

purposes of adjudicating this Motion, so that the Court can confirm for itself the 

allegations made herein.1

Therefore, even though Hopkins at this point does not seek to have the Draft 

Response as it now exists filed on the public record, the fact that a final version of 

it will be offered as material evidence to oppose summary judgment heavily 

supports the unsealing of this information. See, e.g., United States v. Amodeo, 71 

F.3d 1044, 1049 (2d Cir. 1995) (identifying “role of the material at issue in the 

1 To be clear, once the Court has resolved this Motion, it should not rely on the Draft Response in the 

context of future disputes, since it is a mere draft written for the purposes of assisting Hopkins’s 

undersigned counsel in his prosecution of this case (Hopkins Decl. ¶ 3, attached as Ex. A) and would 

under any other circumstances be squarely protected by the attorney-client privilege and never seen by the 

Court but for DOD’s unjustified censorship.

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exercise of Article III judicial power” as a key consideration). This presumption in 

favor of disclosure can be found in both common law and First Amendment 

jurisprudence. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (“It 

is clear that the courts of this country recognize a general right to inspect and copy 

public records and documents, including judicial records and documents.”). The 

Third Circuit summarized the existing case law thusly:

The public’s exercise of its common law access right in civil cases 

promotes public confidence in the judicial system . . . . As with other 

branches of government, the bright light cast upon the judicial process 

by public observation diminishes the possibilities for injustice, 

incompetence, perjury, and fraud. Furthermore, the very openness of 

the process should provide the public with a more complete 

understanding of the judicial system and a better perception of its 

fairness. Access to civil proceedings and records promotes public 

respect for the judicial process and helps to assure that judges perform 

their duties in an honest and informed manner. Accordingly, we have 

applied the presumption of public access to a variety of civil hearings 

and records, including the transcript of a civil trial and exhibits admitted 

at trial; settlement documents filed with the district court as well as 

post-settlement motions; and a civil hearing for a preliminary 

injunction and transcripts of that hearing.

Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir. 

1991) (quotations and citations omitted). See also Richmond Newspapers v. 

Virginia, 448 U.S. 555, 580 n.17 (1980) (“historically both civil and criminal trials 

have been presumptively open”); Brown & Williamson Tobacco v. FTC, 710 F.2d 

1165, 1178 (6th Cir. 1983) (“The Supreme Court’s analysis of the justifications for 

access to the criminal courtroom apply as well to the civil trial . . . . The concern of 

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Justice Brennan that secrecy eliminates one of the important checks on the 

integrity of the system applies no differently in a civil setting.”).

By the same token, the Court should not be swayed by the fact that parts of 

this case allegedly involve classified information, because there is no reason to 

believe that the Draft Response contains classified information. Accordingly, 

without any evidence to the contrary, the presumption in favor of disclosure cannot 

be rebutted, since “[t]he government has no legitimate interest in censoring 

unclassified materials.” McGehee v. Casey, 718 F.2d 1137, 1141 (D.C. Cir. 1983).

Just four months ago, the Fifth Circuit explained, “We recently instructed 

that ‘courts should be ungenerous with their discretion to seal judicial records’ and 

warned that ‘we heavily disfavor sealing information placed in the judicial 

record.’” IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal Dist., 82 

F.4th 402, 411 (5th Cir. 2023) (citations omitted) (quoting Binh Hoa Le v. Exeter 

Fin. Corp., 990 F.3d 410, 418 (5th Cir. 2021), and June Med. Servs., LLC v. 

Phillips, 22 F.4th 512, 519-20 (5th Cir. 2022)). DOD cannot overcome this 

presumption with respect to the Draft Response.

II. THE DRAFT RESPONSE IS NOT PROTECTABLE

As Hopkins testifies, he followed a straightforward pattern when writing the 

Draft Response so as to make it easy for DOPSR to match the text redacted from 

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his manuscripts with his publicly available, unclassified source for that specific 

information. He describes this pattern thusly:

First I would indicate the piece of information DOPSR had redacted 

from a manuscript. Then I would attach an image of the relevant portion 

of the unclassified and/or officially released document from which I 

sourced the information. Then I would give a full citation to the source 

document. 

For example, if I had written the sentence “The case was first assigned 

to Judge Cummings before it was reassigned twice: once to Judge 

Fitzwater and finally to Judge Brown” on page 25 of one of my 

manuscripts, and DOPSR had redacted the names of the judges 

assigned to the case, the relevant section of my response document 

would have looked like this:

P. 25 Judges’ Names

6/13/23 Order, Hopkins v. DOD, No. 3:22-CV-00706-E (N.D. 

Tex.)

(Hopkins Decl. ¶¶ 5-6.) 

By writing the Draft Response in this fashion, he avoided many of the 

thornier issues which face the Court in its consideration of the manuscripts 

themselves. First, the description of the redacted text is generally only a few words 

long, so as to make it generic enough to be unclassified even if the Court ends up 

crediting DOD’s assertion that the actual corresponding manuscript redaction is 

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classified (which, to be clear, it should not). Using Hopkins’s example, it is one 

thing to argue that the specific names “Sam R. Cummings,” “Sidney A. Fitzwater,” 

and “Ada E. Brown” as they are placed in the specific paragraph are properly 

classified pieces of information, but it is something totally different to argue that 

the phrase “Judges’ Names” is a properly classified piece of information.

Second, and most importantly, virtually everything else in the Draft 

Response is “a pasted image from an unclassified publicly available source and a 

citation to that source.” (Id. ¶ 7.) There is no recontextualizing of the information 

which might expose classified information, and there is no rephrasing or 

summarizing of the information which would change its meaning. Each item is the 

equivalent of an accurate photograph of a document that has been officially 

determined to be unclassified or at least was located in a public source, along with 

a citation that allows any readers to confirm that fact for themselves. Accordingly, 

even assuming arguendo that the Court were to find that the summaries of redacted 

information warrant continued protection, it could still not find that the 

photographs themselves do. (See id. ¶ 8.) The D.C. Circuit explained this as 

follows:

We note, to begin with, that [the author]’s secrecy agreement applies 

only when he seeks to publish “classified information” that “has come 

or shall come to [his] attention by virtue of [his] connection with the 

[Government].” The agreement does not extend to unclassified 

materials or to information obtained from public sources. The 

government may not censor such material, “contractually or 

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otherwise.” The government has no legitimate interest in censoring 

unclassified materials. Moreover, when the information at issue derives 

from public sources, the agent’s special relationship of trust with the 

government is greatly diminished if not wholly vitiated. 

McGehee, 718 F.2d at 1141 (quoting United States v. Marchetti, 466 F.2d 1309, 

1313 (4th Cir. 1972)).

Of particular relevance to the Court is the fact that McGehee identifies two 

separate exceptions to the secrecy agreement. The first pertains to unclassified 

information and does not need to be discussed further, except to say that DOD 

must still meet the burden of demonstrating that these images and citations are 

properly classified. The second exception, however, only requires that the 

information “has come or shall come to [his] attention by virtue of [his] connection 

with the [Government],” singling out “information . . . derive[d] from public 

sources” as not generally warranting protection. Id. This second exception 

critically does not require that the information be unclassified. It is virtually 

impossible to imagine a more crystal clear example of “information derived from 

public sources” than an actual image of a public source complete with a citation to 

that source. Therefore, while Hopkins continues to maintain that all of the 

information in both his Draft Response and his manuscripts is unclassified, the 

Court does not need to reach that question because the information in his Draft 

Response is undeniably derived from public sources. See Stillman v. CIA, 319 F.3d 

546, 548 (D.C. Cir. 2003) (“If, on the other hand, the information was not 

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classified properly, then Stillman may publish the manuscript.”); Shaffer v. DIA, 

102 F. Supp. 3d 1, 9 (D.D.C. 2015) (“Nonetheless, when a manuscript contains 

information that is unclassified, wrongly-classified, or derived from public sources, 

the Government may not censor such material.”).

III. DOD’S INITIAL ARGUMENTS ARE WITHOUT MERIT

In an attempt to persuade this Court to require Hopkins to oppose its 

dispositive motion before the Court rules on this Motion, DOD made several 

arguments about the propriety of granting the relief Hopkins was allegedly 

requesting, which do not bear close scrutiny either because they misrepresent the 

facts or the law or because they simply are not applicable. Hopkins will briefly 

address them in roughly the order in which they were raised.

First, as noted above, DOD encourages the Court to wait until after Hopkins 

has already filed his opposition to its dispositive motion to consider whether the 

information in the Draft Response can be withheld from his counsel, but in doing 

so it demonstrates why the question of whether the manuscripts may be censored is 

separate and distinct from the immediate question of whether the Draft Response

may be censored. DOD states that, when it files its reply brief to its dispositive 

motion, “[i]t will also explain in classified declarations why the sources in 

Hopkins’s alleged public sourcing document do not constitute an official 

acknowledgement.” (DOD’s Stay Opp’n at 5.) It later elaborates that it “will 

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explain to the Court in its classified declarations why sources Hopkins identified 

do not constitute official disclosures or why the redacted information in the 

manuscripts has not been declassified.” (Id. at 9.) However, it does not claim that it 

will explain to the Court in its classified declarations why the Draft Response is 

not derived from public sources. Nor can it, since, as noted above, the Draft 

Response is literally comprised of direct images of text that Hopkins obtained from 

public sources.

This is a critical distinction. As DOD has already argued in the brief filed 

with its dispositive motion, the test it cites for “official disclosure” is a highly 

particular one, in which the author must show that the information being withheld 

is as specific as the previously released information, that it matches it precisely, 

and that, most importantly, the information “must already have been made public 

through an official and documented disclosure.” (Def.’s Br. Supp. Mot. Dismiss & 

Summ. J., Dkt. #32-1, at 47-48 (filed Oct. 4, 2023) [hereinafter DOD’s Disp. 

Mem.] (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).) DOD 

stated that it intends to argue that “Dr. Hopkins has failed to identify official 

disclosures of the specific information included with his manuscripts, instead 

asserting that information contained in other sources is generally similar to what he 

intends to disclose.” (Id. at 48 (emphasis added).) Put another way, DOD intends to 

argue that even if the Court accepts that Hopkins’s manuscript was entirely derived 

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from public sources, it must still rule in DOD’s favor if he cannot show that those 

public sources got the information from “an official and documented disclosure,” 

because it is only applying the “official disclosure” test and not the “derived from 

public sources” test.

While Hopkins does intend to argue that his manuscripts satisfy the official 

disclosure test as well, his key argument for the purposes of this Motion is that the 

Draft Response clearly satisfies the “derived from public sources” test, and that 

DOD accordingly has no grounds to prevent him from providing it to his counsel. 

It may be that, after his counsel files his opposition, supported by the final version 

of the Draft Response, the Court still finds that Hopkins has not met his burden of 

demonstrating that the redacted portions of his manuscripts were officially 

disclosed, but that has no bearing on whether the Draft Response—i.e. his 

evidence—was itself exclusively derived from public sources. However, DOD has 

argued that, left to its own devices, it would only argue in its reply to its dispositive 

motion that the Draft Response “do not constitute an official acknowledgement,” 

which is immaterial to question currently before the Court. As explained above, 

“when the information at issue derives from public sources, the agent’s special 

relationship of trust with the government is greatly diminished if not wholly 

vitiated.” McGehee, 718 F.2d at 1141. Regardless of whether this fact applies to 

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Hopkins’s manuscripts, it cannot be denied that it applies to the Draft Response, 

and that is all that matters at this juncture.

DOD then pivots to its main contention that Hopkins is asking the Court to 

impermissibly “grant[] Hopkins’s counsel access to classified information,” which 

it equates to “[t]he granting of a security clearance for access to classified 

information.” (DOD’s Stay Opp’n at 6.) However, this is not what Hopkins is 

asking the Court to do. Hopkins is asking the Court to find that he may share 

information derived from public sources with his attorney. Hopkins could just as 

easily be asking the Court to find that he may share a newspaper article discussing 

a matter the Government considers to be classified with his attorney with the 

annotation, “this was one of my sources for my book.” The fact that DOD claims 

that the information in the publicly available newspaper article is classified does 

not change the fact that it is a publicly available newspaper article, and DOD 

cannot prevent Hopkins from sharing that article with his undersigned counsel to 

allow him to prove that the book was improperly redacted. More importantly, a 

court order authorizing Hopkins to share the newspaper article with his counsel is 

not the same as granting his counsel a security clearance to view classified 

information.

DOD then renews an argument it made previously in this case, stating that 

its “approach to judicial review has been uniformly applied in prepublication 

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review cases.” (Id. at 7; see also Def.’s Part. Opp’n Pl.’s Mot. Stay, Opposed 

Cross-Mot. Amend Sched. Order, & Unopposed Req. Expedited Consideration, 

Dkt. #17, at 5 (filed May 24, 2023) (same).) As Hopkins noted at the time, this is 

far from an accurate representation of the case law. 

In McGehee, the plaintiff and his counsel were allowed to review both of the 

Central Intelligence Agency’s (“CIA”) classified in camera affidavits and draft and 

file classified in camera affidavits in response. Br. for Appellants at 6-7, McGehee 

v. Casey, No. 81-2233 (D.C. Cir.) (excerpt filed in this case as Dkt. #19-1). 

McGehee’s attorney explained the procedure thusly:

[I]n McGehee the way that worked I had access to the manuscript that 

was in dispute. I went out to the CIA with my client, I read the affidavits 

that the CIA filed. My client and I drafted counter-affidavits. A 

secretary at the CIA typed them up. I delivered them to somebody in 

the General Counsel’s office, and after that, the lawyer got them filed 

with the court. Our notes and everything were kept out there. 

Tr. of 4/26/02 Mot. Hrg. at 105:25-106:8, Stillman v. DOD, No. 01-1342 (D.D.C.) 

(excerpt filed in this case as Dkt. #19-2).2 Furthermore, McGehee was not the only 

such case where a comparable process was followed. In Alfred A. Knopf, Inc. v. 

Colby, the author and his counsel directly participated in negotiations with the 

agency, after which the agency reversed its position on 114 out of 339 items. 509 

2 The line preceding this quote contains a scrivener’s error when it states, “I wasn’t the attorney 

in McGehee.” Id. at 105:24. Mr. Lynch was clearly the attorney in that case. See, e.g., Dkt. #19-1 

at 1.

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F.2d 1362, 1365 (4th Cir. 1975). It is telling that DOD is attempting to persuade 

this Court to ignore two of the seminal cases in this field, all for the purpose of 

preventing Hopkins’s counsel from effectively arguing that DOD is misapplying 

the law and using its unjustified classification decisions to obtain a litigation 

advantage.

On that note, the Court should consider the magnitude of Hopkins’s interest 

in providing the Draft Response to his undersigned counsel. DOD argues “no 

harm, no foul” because “the Court will have access to the alleged public sourcing 

document in camera, [so] there is no need for Hopkins’s counsel to use that 

evidence to prove as much to the Court.” (DOD’s Stay Opp’n at 9 (quotations 

omitted).) However, this minimizes the harm that being required to meet his 

burden without the effective assistance of counsel will impose on Hopkins. DOD 

has already telegraphed that it intends to argue that the exact phrasing and 

formatting of Hopkins’s response means that he has not met the high standard of 

proving that “equally specific information exactly matching the information at 

issue was made public through an official and documented disclosure.” (Id. at 8.) 

DOD, after reviewing the Draft Response internally for three months, explained 

that its argument is that Hopkins is merely “asserting that information contained in 

other sources is generally similar to what he intends to disclose.” (DOD’s Disp. 

Mem. at 48.) Despite this admission that it intends to hold Hopkins to a highly 

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particular evidentiary standard, DOD nonetheless argues that he will not be harmed 

if his undersigned counsel is unable to help him meet that standard, because “the 

Court will have access to” the evidence that DOD maintains does not meet its 

exacting standards. (DOD’s Stay Opp’n at 9.)

DOD concludes its discussion of this issue as it began it: with a patently 

false misrepresentation. DOD cites to an order from another case, describing it as 

“in prepublication review case, denying the plaintiff’s motion to compel the 

government to provide access to classified information in the middle of summary 

judgment briefing.” (Id. (citing Lawless v. DOD, No. 21-2859, slip op. (D.D.C.

Mar. 6, 2023) [hereinafter Lawless Order]).) Contrary to DOD’s creative 

description, that decision bore no resemblance to this description. In Lawless, the 

plaintiff requested access to a “secure stand-alone computer” that that he could 

“draft a declaration that would specifically refute DoD’s classification arguments, 

while protecting against even the inadvertent disclosure of classified information.” 

Lawless Order at 2 (cleaned up), attached as Ex. B. The district court held that 

because, in part, the plaintiff stated that he could “take steps to carefully craft a 

more cryptic declaration that is unclassified,” the plaintiff “demonstrated no need 

for access to a secure computer for now.” Id. at 4. In other words, the entire 

question before the Lawless court was whether or not the plaintiff could access a 

secure computer which contained no classified information for the purposes of 

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securely protecting classified information he intended to give to the Court. This is 

fundamentally different from DOD’s description of “the plaintiff’s motion to 

compel the government to provide access to classified information” (DOD’s Stay 

Opp’n at 9), and the fact that DOD attempted to transparently mischaracterize it as 

such to preempt Hopkins from presenting a complete case demonstrates DOD’s 

lack of good faith in this litigation. 

CERTIFICATE OF CONFERENCE

The undersigned conferred with DOD’s counsel John Lewis and Lisa 

Newman conferred regarding the relief requested in this Motion on 23 October 

2023. DOD’s counsel responded, in pertinent part, “[T]he Department of Defense 

has decided that it cannot approve the release of his rebuttal submission in any 

form. . . . [T]he document essentially consists of the redactions from Klaxon and 

two pages of Crowded Skies paired side-by-side with excerpts from purportedly 

public sources that Dr. Hopkins characterizes as official disclosures of the redacted 

information, without significant argument or analysis. To disclose even those 

purportedly public excerpts in this context would provide information concerning 

the substance of the redacted material. We therefore believe that this document 

should be for the Court’s eyes only, and forwarded to the Court directly along with 

any other materials your client wishes to submit. To be clear, we dispute Dr. 

Hopkins’s assertion that this material is sufficient to demonstrate that the redacted 

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information has been officially disclosed, and will respond in connection with our 

reply brief.” Accordingly, the parties were unable to reach agreement.

CONCLUSION

The Court should grant this Motion and authorize Hopkins to provide a copy 

of his Draft Response to his undersigned counsel. A proposed Order has been 

included with this Motion.

Date: February 12, 2024

 Respectfully submitted,

/s/ Kelly B. McClanahan 

 Kelly B. McClanahan, Esq.

 N.D. Tex. Bar #984704DC

 National Security Counselors

 4702 Levada Terrace

 Rockville, MD 20853

 301-728-5908 

 240-681-2189 fax

 Kel@NationalSecurityLaw.org

Counsel for Plaintiff

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CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing filing contains 3838 words. 

 /s/ Kelly B. McClanahan 

 Kelly B. McClanahan, Esq.

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