Jesse C.

Trentadue (#4961)
8 East Broadway, Suite 200
Salt Lake City, UT 84111
Telephone: (801) 532-7300
Facsimile: (801) 532-7355
jesse32@sautah.com
Pro Se Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JESSE C. TRENTADUE,
Plaintiff,
vs.
FEDERAL BUREAU OF
INVESTIGATION, UNITED STATES
DEPARTMENT OF JUSTICE OFFICE
OF INFORMATION AND PRIVACY,
and UNITED STATES CENTRAL
INTELLIGENCE AGENCY,
Defendants.
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PLAINTIFFS REPLY
MEMORANDUM IN SUPPORT OF
MOTION TO STRIKE PORTIONS
OF DAVID M. HARDYS FIFTH
SUPPLEMENTAL DECLARATION
Case No.: 2:08cv788 CW
Judge Clark Waddoups
Magistrate Dustin B. Pead
On May 13, 2011 the Court entered an Order, granting in part and denying
in part, Plaintiffs Motion to Continue Summary Judgment Proceedings Pending
Discovery.
1
In that Order, the Court also directed the FBI to, among other
1
Doc. 82.
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 1 of 22
specific tasks, search the I-Drive and S-Drive for evidence as to the location of the
missing videotapes and, if no search was conducted, to explain why such a search
would not be reasonably calculated to locate the requested videotapes and other
materials.
2
The FBI responded to the Courts May 13, 2011, Order with a Third
Supplemental Declaration
3
and a Fourth Supplemental Declaration
4
from Mr.
Hardy.
On March 21, 2012, the Court conducted a hearing to consider the FBIs
supplemental evidence. During that hearing, the Court noted the conclusory
nature and hearsay content of Mr. Hardys Declarations and indicated that it
would disregard them; whereupon the FBI asked to submit additional evidence.
The Court granted that request, and gave the FBI the opportunity to submit any
additional evidence.
5
On June 30, 2012, the FBI submitted a Fifth Supplemental
Declaration from Mr. Hardy.
6

2
Id. 2.
3
Doc. 83-1.
4
Doc. 97-1.
5
Doc. 103.
6
Doc. 104-2.
2
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 2 of 22
It was very apparent, however, that the statements made by Mr. Hardy in
paragraphs 10 through and including 21 of his Fifth Supplemental Declaration
were not only conclusory, but they were likewise unreliable and misleading
because of Mr. Hardys lack of candor, because they were not based upon Mr.
Hardys personal knowledge, because they contained multiple layers of hearsay
and speculation, and/or because Mr. Hardy lacked the necessary foundation to
make those statements, much less make them under oath. Consequently, Plaintiff
moved to strike paragraphs 10 through 21 of Mr. Hardys Fifth Supplemental
Declaration.
7
On August 10, 2012, the FBI filed a Memorandum in opposition to
Plaintiffs Motion to Strike.
8
Plaintiff hereby submits this Reply Memorandum in
support of his Motion to Strike Portions Of David M. Hardys Fifth Supplemental
Declaration.
9
7
Doc. 109.
8
Doc. 118.
9
Doc. 109.
3
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 3 of 22
FACTS
A. Paragraphs 10 through 14 of Mr. Hardys Fifth Supplemental
Declaration were directed at paragraph 2 of the Courts May 13, 2011, Order,
which required the FBI to search the I-Drive and S-Drive for evidence as to the
location of the missing videotapes and, if no search was conducted, to explain why
such a search would not be reasonably calculated to locate the requested
videotapes and other materials.
10

1. In response, Mr. Hardy has told the Court that the I-Drive was
where the FBI temporarily stored electronic media prior to its final approval and
that [o]nce final approval was received, the material was added to the official
investigative case file, which includes indexing the material in the ACS, the FBIs
automated system, and at the same time deleted from the I-Drive.
11

2. Mr. Hardy has also told the Court that the I-Drive was
decommissioned after comprehensive searches of the I-Drive were done in 2001
for OKBOMB materials but that the I-Drive did remain in use until 2004,
12
and
10
Doc. 82 2.
11
Doc. 83-1, 15.
12
Mr. Hardy states that In May 2001, due to pending criminal proceedings, the FBIs
Director Office ordered all Field Offices and Legats to perform comprehensive searches of their
4
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 4 of 22
that the FBI currently has an S-Drive, known as a common drive or shared
drive.
13

3. Mr. Hardy has likewise represented to the Court that no search
was conducted of either the I-Drive or the S-Drive because, among other reasons,
the S-Drive was not in use until after 2001, so there was no reason to believe the
S-Drive would contain any responsive OKBOMB documents; beginning in 2001
the I-Drive was phased out of use.
14
And all I-Drive material has been uploaded
into the official OKBOMB case file,
15
and it would be in direct violation of the
Directors order for individuals to continue to maintain OKBOMB-related material
in their own folders or in shared folders. . . .
16

4. The FBI expressly denies that Mr. Hardy ever said that the S-
Drive replaced the I-Drive or that the I-Drive ever served as a repository for
I-Drives for all investigative materials related to OKBOMB and certify that such a search was
performed. Doc. 104-2, 11, p. 7. This 2001 search of the I-Drive system was for the McVeigh
prosecution. See Doc. 118, p. 6. That search apparently produced over 3,000 pages of reports
that the FBI had failed to turn over to the McVeigh defense team. See Exhibit 1 hereto.
13
Id. at 16.
14
Doc. 83-1, 15 and 16.
15
Doc. 104-2, 11, p. 7.
16
Doc. 104-2, 13, p. 8.
5
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 5 of 22
OKBOMB documents.
17
Yet, the FBI says, too, that the I-Drive system was
searched for OKBOMB documents before it was decommissioned.
18

5. As recently as 2005, the OKBOMB case file was restricted.
And something like the S-Drive was apparently being used to store and perhaps
even cull evidence. By an April 6, 2005, FBI e-mail on the subject of Uploading
Documents to OKBOMB File, FBI Agents were told to email documents in the
OKBOMB file to a person in the Oklahoma City Field Office, whose named is
redacted, for uploading into the official case file.
19

6. The FBI even acknowledges that in 2004 it did I-Drive and S-
rive searches for OKBOMB documents in another FOIA case but only because the
FOIA requests in that case specifically asked the FBI to search the I-Drive and S-
17
Doc. 118
18
Doc. 118, p. 6. Plaintiff has difficulty reconciling what appear to be conflicting
statements by the FBI and Mr. Hardy. Yet, it is the FBI which, in its opposition Memorandum,
repeatedly accuses Plaintiff of making false and misleading factual assertions to the Court. But
rather than false and misleading assertions of fact, there were some mistakes in Plaintiffs
Memorandum. Plaintiff, for example, stated that the FBI had done I-Drive and S-Drive searches
at the Oklahoma City Field Office as recently as December of 2009. Doc. 110, 14, p. 8. That
was incorrect, but it was an obvious typing error since immediately before that statement Plaintiff
had referred to the date of December 9, 2004. Id.
19
See Doc. 98-1. This drive in the Oklahoma City Field Office would have been a good
place for Mr. Hardys staff to have looked for the requested videotapes and documents, but they
apparently did not do so.
6
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 6 of 22
Drive.
20
That search was done of the I-and S-Drives at the Oklahoma City Field
Office,
21
It was also undertaken by the FBI without objection.
22

7. The information about the I-Drive and S-Drive which Mr. Hardy
provided under oath to the Court came from unidentified members of his staff who
supposedly obtained that information from unidentified personnel in the FBIs
Oklahoma City Field Office, with whom Mr. Hardys staff had allegedly discussed
the I-Drive and S-Drive.
23
According to Mr. Hardy, his staff believed and he
agreed, that a search of what might be called S-Drives today would be fruitless
because these drives did not exist at the time of the OKBOMB investigation.
24
8. Mr. Hardy, however, goes on to say that should the Court
consider ordering a search of the S-Drives in use today, . . . that it would be so
burdensome that a reasonable estimate of the time necessary to do so is
20
Doc. 118, p. 10.
21
Trentadue v. FBI, District of Utah, Civil No. 2:04cv772, Doc. 21, 16, p. 8.
22
The FBI has undertaken other searches of the Oklahoma City Field Offices I-Drive
system without objection, including one in the case of Trentadue v. Federal Transfer Center,
District of Utah, Civil No. 2:03cv946 done in 2004. See Exhibit 2 hereto. Plaintiff wonders,
therefore, what is so different or difficult about doing the I-Drive and S-Drive searches that the
Court ordered to be done in the instant case?
23
See Doc. 104-2, s 10-14.
24
Doc. 104-2, 14, p. 8.
7
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 7 of 22
unavailable; and that there is virtually no possibility of finding records
responsive to Plaintiffs FOIA request because those records would be in the
OKBOMB Warehouse, which has already been searched.
25
Mr. Hardy claims that, out of concern for their privacy and safety, he
cannot reveal the identities of the persons who provided him and/or his staff with
the information about the I-Drive and S-Drive. And further insists that because
other Courts have accepted similar Declarations from Mr. Hardy, this Court
should do likewise.
ARGUMENT
Mr. Hardys conclusory statements to the Court about a search of the S-
Drive being fruitless and/or there is no reason that the S-Drive would contain
any OKBOMB material since it did no come into existence until after 2001 are
pure speculation on his part. Mr. Hardys statement to the Court that it would be
horribly burdensome to do an S-Drive search is both conclusory and misleading.
It is misleading because it would no be necessary to search the S-Drives in every
FBI Field Office as Mr. Hard contends. The only S-Drive systems that would
need to be searched are the ones in the Oklahoma City Field Office, which is the
25
Doc. 104-2, 14, p. 9.
8
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 8 of 22
Field Office that would have seized the subject videotapes within the days
immediately following the Bombing,
26
and the Los Angeles Field Office, which is
where two resident agents are reported to have attempted to sell a videotape of the
Bombing to the media.
27
It is also misleading because the Mr. Hardy has admitted
that his office has done, without objection, I-Drive and S-Drive searches for
OKBOMB material at the Oklahoma City Field Office supposedly a Plaintiffs
request yet, in the instant case, Mr. Hardy does no search of the I-Drive or S-
Drive, or the current version of those drives at the Oklahoma City Field Office,
despite being ordered to conduct that search.
With respect to Mr. Hardys suggestion that the Court accept his hearsay
statements about the I-Drive and S-Drive because other Courts have done so,
Mr. Hardy overlooks the fact that [i]n the case of Islamic Shura Council of
Southern California v. Federal Bureau of Investigation, No. SAC07-1088-CJC,
2011 WL 156476 (S.D. Cal. April, 2011), the court found the Government, and
Mr. Hardy specifically, to have provided false and misleading information to the
26
FBI agents, for example, took possession of the Murrah Building surveillance cameras
on the very day of the Bombing. See Doc. 49-4, 8.
27
See infra, p 19.
9
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 9 of 22
court through sworn statement.
28
Similarly, Mr. Hardy ignores that he did not
become employed by the FBI until August 1, 2002,
29
which was after many of the
matters he relates under oath to the Court in his Fifth Supplemental Declaration
and, equally significant, there is no evidence indicating that the unnamed sources
for the information that Mr. Hardy provides to the Court under oath had the
requisite foundation to make those statements, assuming that they made them.
FACTS
B. Paragraphs 15 through 18 of Mr. Hardys Fifth Supplemental
Declaration were directed at paragraphs 3 and 4 of the Courts May 13, 2011,
Order which, respectively, required the FBI to advise the Court whether the
Evidence Control Centers or ECCs located at FBI Headquarters, the Oklahoma
City Field Office and the FBI Crime Lab had been manually searched and, if not,
explain why there was no reasonable likelihood that the requested materials would
found in any of those locations;
30
and to either manually search OKBOMB
physical files at FBI Headquarters, the FBI Oklahoma City Field Office and the
28
Doc. 82, p. 2.(emphasis added).
29
Doc. 104-2, 1, p. 1.
30
Id. 3.
10
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 10 of 22
FBI Crime Lab for the requested videotapes and other materials that were
collected during the first 14 days following the Oklahoma City Bombing, or
provide evidence as to why such a search would be too burdensome to undertake.
31
1. With respect to the Courts Order to search the ECCs, Mr. Hardy
has told the Court that he did not search the ECC at the Oklahoma City Field
Office. Instead of searching the Oklahoma City Field Offices ECC, a search was
done of the Evidence Control Room in the Oklahoma City Warehouse where all
OKBOMB materials are currently located.
32

(i) The Oklahoma City Field Offices on-site ECC was not
searched because there was no reasonable likelihood that the videotapes would
be found there since the OKBOMB Warehouse is the only designated repository
of evidence related to OKBOMB.
33

(ii) The FBI insists that [i]t is no more likely that OKBOMB-related
31
Id. 4.
32
Doc. 97-12, 6.
33
Doc. 118, p. 12.
11
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 11 of 22
evidence is located in the Oklahoma City Field Office ECC than it is likely that
such evidence is located in a Field Office desk drawer in Albuquerque.
34
even
though the Oklahoma City Field Office was where the OKBOMB evidence was
initially stored.
ARGUMENT
Mr. Hardys statement that no search was done of the ECC at the
Oklahoma City Field Office because there is no reasonable likelihood that the
videotapes or information about those tapes would be found is speculation. It is
likewise suspicious and misleading given Mr. Hardys earlier representation to the
Court that:
While it is always a possibility that responsive documents
might have been misfiled and thus could be located some
where other than in the OKBOMB file (though it would be
impossible to know where). I am not aware that this is the
case, and a reasonable search did not and would not locate
any such documents (if they exist) because they would not
be in a location likely to contain responsive documents.
35
34
Doc. 118, p.14.
35
Doc. 83-1, 20.(emphasis added).
12
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 12 of 22
It is suspicious and misleading because, rather than being placed in the wrong case
file, it is more likely that the videotapes and related documents were left in the
ECC at the Oklahoma City Field Office.
It is suspicious and misleading, too, because Mr. Hardy does not contend
that it would be burdensome to search the ECC at the Oklahoma City Field Office
nor apparently could he make such a claim since the FBI has already supposedly
done a manual search of the OKBOMB Warehouse. Simply stated, what could be
so difficult about someone walking into the Field Office ECC and seeing if the
videotapes and related documents are there, but for some reason the FBI does not
want to under take that search.
FACTS
2. With respect to the Courts order for a manual search, Mr. Hardy
told the Court that no manual search was done because it would take an employee
18 months to review the 450,000 pages of documents gathered during the two
week period immediately following the Bombing.
36

(i) When Plaintiff pointed out that only the Sub-D file of the official
36
Doc. 83-1, 11.
13
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 13 of 22
OKBOMB file and not the entire OKBOMB file needed to be search, Mr. Hardy
represented to the Court that because a manual search of Sub-file D was not likely
to produce any responsive documents, he had not made any effort to determine
how burdensome it would be to conduct such a search of the OKBOMB file,
37
and
that a manual search for documents related to the evidence collected by the FBI
during the first 14 days of the OKBOMB investigation would be virtually
impossible because those records could be anywhere in the paper files in the
OKBOMB Warehouse.
38
ARGUMENT
Mr. Hardys statements to the Court about the burdens allegedly
associated with a manual search of the OKBOMB file are misleading because the
only search that needed to be done was a search of Sub-file D of the official case
file, which contained a much smaller number of documents; several thousand at
most. Mr. Hardys statements are also misleading because when he told the Court
37
Doc. 97-1, 8. The FBI further stated that it hasnot specifically determined the
burdens that would be involved in a manual search of Sub-file D, but that the likely benefit of
such as search are too low to justify imposing any additional burdens upon them. Doc. 97, p. 19.
With the Courts permission, Plaintiff is willing to conduct the searches that he has
requested and that the Court has ordered be done.
38
Doc. 104-2, 18.
14
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 14 of 22
that the records related to evidence gathered during the first 14 days of the
Bombing investigation could be anywhere in the OKBOMB Warehouse, he was
referring to the paper versions of records gathered from outside the Oklahoma City
Field Office (i.e., evidence collected by other FBI Field Offices), which are
apparently stored in boxes and have not been arranged in chronological order.
39

But the records to which Mr. Hardy refers have had nothing to do with
videotapes and documents Plaintiff has requested and for which the FBI was
ordered by the Court to search. The videotapes and related documents requested
by Plaintiff would have been taken into evidence and/or prepared by the
Oklahoma City Field Office; such as the Hanger videotape for which the FBI has
produced two chain of custody records.
40

FACTS
C. Paragraphs 19 through 21 of Mr. Hardys Fifth Supplemental
Declaration were directed at paragraph 5 of the Courts May 13, 2011, Order,
which required Mr. Hardy to submit a Declaration stating that he does not know
of either the existence or likely locations of the missing videotapes, and that he is
39
Id.
40
Doc. 91, pp. 42-43.
15
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 15 of 22
otherwise unaware of anyone else who may know of the existence of likely
locations of the videotapes.
41

1. Mr. Hardy responded to that Order by representing to the Court
that I am unaware of the existence or likely location of additional tapes
responsive to the plaintiffs FOIA request, including tapes from the Murrah
Building or any additional Hanger tape other than the tape that plaintiff already
received, and do not know of anyone who would know where additional tapes
would be located;
42
and that I also neither know, myself, nor know of anyone
else who may know where any such videotape footage might be found within the
custody, control, or possession of the FBI.
43

ARGUMENT
Mr. Hardys statements about not knowing where else to look
for the missing videotapes and documents or who else might know where the
videotapes could be are conclusory and misleading. Mr. Hardy provides no facts
about what, if anything, he did to attempt to determine the identity of persons
41
Id. 5.
42
Doc. 83-1, 20.
43
Doc. 104-2, 20.(emphasis added).
16
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 16 of 22
likely to have knowledge as to the location of the videotapes and related
documents and/or other possible locations to be search for this evidence. Yet, he
could easily have provided the Court with this information had he wanted to do so.
During the Hoffman case, for example,
44
in which the same videotapes and
documents were the subject of a FOIA request by a reporter by the name of David
Hoffman, it came to light that one videotape and 300 responsive documents were
being kept at FBI Headquarters, which according to Mr. Hardy did not have an
ECC. This evidence was NOT in the Oklahoma City Field Offices EEC along
with other OKBOMB evidence.
45
The Hoffman Court entered an Order requiring
the FBI to file under seal a list of the documents and videotapes found by the
FBI to be responsive to plaintiffs FOIA requests,
46
which the FBI did.
47

44
Hoffman v. United States Department of Justice, Western District of Oklahoma,
5:98CV1773.
45
Doc. 70-15, p.4. The FBI suggests that the materials being kept at FBI Headquarters
was not evidence, but perhaps duplicates of evidence or material of no evidentiary value. Doc.
118, p. 3.
46
Order, p. 4, Exhibit 3 hereto.(emphasis added).
47
A copy of the Docket from thee Hoffman case is attached hereto as Exhibit 4, and it
shows that this list was filed as entry 70. That list of documents and videotapes would have been
a good place for Mr. Hardy to have looked for evidence of the missing videotapes. The FBI,
however, suggests that the Hoffman case is somehow irrelevant because the FOIA request in
Hoffman was much broader than Plaintiffs request in the instant case. Indeed it was broader, but
the Hoffman FOIA request specifically asked the FBI for: [T]he videotape taken from OHP
Officer Charlie Hangers patrol car upon the arrest of Timothy James McVeigh on 4/19/95,"
17
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 17 of 22
Mr. Hardy has known about the Hoffman case for some time, yet he has
not mentioned his Offices records in that matter, which certainly exists and would
be a reasonable place to look for evidence about the missing videotapes and
related chain of custody-evidence control documents and the identity of persons
with possible knowledge as to the location of this missing evidence. Another
place to look for this missing evidence would be the Oklahoma City Field Office,
where an agent was apparently under investigation for making copies of a
videotape showing the bomb being delivered to the Murrah Building on the
morning of April 19, 1995.
That agent is reported as having made those copies to give to friends and
co-workers.
48
It is certainly not unreasonable to conclude that, if this is true, there
Surveillance videos taken from the area surrounding the Alfred P. Murrah Building on
4/1`9/95, and [A]ll reports, memoranda, transcripts, notes, case files and any other documents
concerning these tapes. . . (Doc. 70-15, p. 2); which is essentially the same request that Plaintiff
made to the FBI.
48
Doc. 107-5, p. 35. The FBI has not denied that this incident occurred. It simply
contends that the report of this incident, which was a 1995 Media Bypass Magazine article, is
hearsay. But that article contains amazing detail about the incident. It is likewise significant
that the FBI has presented no evidence proving or even suggesting that the videotapes Plaintiff is
seeking do not exist; whereas Plaintiff has presented considerable evidence, both direct and
circumstantial, that those videotapes exist. See Doc. 107. In fact, these surveillance tapes are
even referenced in a law review note. See Quentin Burrows, Scowl Because Youre on Candid
Camera: Privacy and Video Surveillance, 31 Val. U. L. Rev. 1079, 1123 n. 355 (1997)(Law
enforcement officials claim that they have a 22 second long surveillance video that shows
McVeigh in a Ryder truck 500 feet from the federal building a few minutes before the explosion.
. . .A surveillance camera in the Regency Tower apartment building clicked every other second
18
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 18 of 22
should be some record of this event still remaining in the Oklahoma City Field
Office, which would undoubtedly discuss the videotape and the identity of persons
with possible knowledge about the existence-location of that videotape..Mr.
Hardy, however, does not mention this location to the Court.
Mr. Hardy could likewise search the FBIs Los Angeles Field Office out
of which several agents are said to have been under investigation for trying to sell
to the media a videotape of the bomb being delivered to the Murrah Building on
the morning of April 19, 1995. These FBI agents were reportedly asking $1
million for that videotape.
49
If this story about trying to sell that videotape is true,
one would think that a search of the Los Angeles Field Office might produce
recording the Ryder truck coming into view and stopping in front of the Alfred P. Murrah
Federal Building prior to the explosion)(quoting from CCTV For Public Safety 52 -Security
Industry Association Report 1966). The comments about the Regency Tower surveillance
camera virtually mirror the testimony that FBI agent Hersley gave at the McVeigh Preliminary
Hearing.
In that testimony, Mr. Hersley described in detail a videotape from one of the Regency
Tower exterior surveillance cameras taken at approximately 9:00 AM on the morning of April
19, 1995, including images of the Ryder Truck and yellow Mercury shown in that tape.
According to Mr. Hersley, this camera scanned the area in front of the Regency Towers and that
while, for some unexplained reason, he had not watched the entire tape but was shown still
photographs produced from the tape, these photographs showed the Ryder Truck moving in an
easterly direction towards the Murrah Building at approximately 9:00 AM on April 19, 1995.
See Doc. 107-10.
49
The FBI has also not denied that this incident occurred.
19
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 19 of 22
results since this is the type of sensitive (embarrassing to the FBI) information that
Mr. Hardy has said is typically not up loaded into the FBIs computerized
evidence record tracing system.
50
Yet, Mr. Hardy says nothing about the FBIs
Los Angeles Field Office being a possible site to search for evidence related to the
location of the missing videotapes or the identity of persons with possible
knowledge about these matters..
CONCLUSION
In order to be considered by the Court, Mr. Hardys Fifth Supplemental
Declaration must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
51
However, paragraphs 10 through 21 of Mr.
Hardys Fifth Supplemental Declaration do not meet this standard. The
statements contained in these paragraph are not based upon Mr. Hardys personal
knowledge and should be stricken.
52
These paragraphs should also be stricken
because they contain multiple layers of hearsay, conclusory factual assertions and
50
According to Mr. Hardy, [m]any documents are not uploaded for various reasons,
including the records level of classification, security reasons, or privacy concerns. Doc. 98-2, p.
4, 10.
51
Federal Rule of Civil Procedure 56(B)(4).
52
See Leidig v. Honeywell, Inc., 850 F.Supp. 796, 799-800 fn. 1 (D. Mn. 1994).
20
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 20 of 22
speculation.
53
Furthermore, Mr. Hardys Fifth Supplemental Declaration is very
much on the order of a sham affidavit of the type Courts can and should
disregard.
54

DATED this 14
th
day of September, 2012.
/s/ jesse c. trentadue
Jesse C. Trentadue
Pro Se Plaintiff
T:\6000\6201\1\FOIA Appeal\CIA\REPLY MEMO MOTION TO STRIKE FIFTH SUPPLEMENTAL DECLARATION.wpd
53
See e.g. Falls Riverway Realty, Inc. v. Niagra Falls, 754 F.2d 49 (2
nd
Cir. 1985);
Koclanakis v. Merrimack Mutual Fire Insurance Co., 899 F.2d 673, 675 (7
th
Cir. 1990); First
Pacific Networks, Inc. V. Atlantic Mut. Ins. Co., 891 F. Supp. 510, 514 (N.D. Cal. 1995).
54
See Maddy v. Vulcan Matterials Co., 737 F. Supp. 1528, 1532 (D. C. Kan. 1990).
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 21 of 22
CERTIFICATE OF SERVICE
I hereby certify that this 14
th
day of September, 2012, I electronically filed the
foregoing REPLY MEMORANDUM with the U.S. District Court. Notice will
automatically be electronically mailed to the following individuals who are registered
with the U.S. District Court CM/ECF System:
KATHRYN L. WYER
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Tel: (202) 616-8475
JARED C. BENNETT,
Assistant United States Attorney
185 South State Street, #300
Salt Lake City, Utah 84111
Tel: (801) 524-5682
Attorneys for Defendants

/s/ jesse c. trentadue
22
Case 2:08-cv-00788-CW-DBP Document 122 Filed 09/14/12 Page 22 of 22