Page 50- It is particularly telling that, even though the DNC hired “a cybersecurity technology firm” to “investigate the attack” and conduct a “forensic analysis of the DNC’s computer network”, the DNC pleads interception only “upon information and belief”***
{From https://www.documentcloud.org/documents/5758381-Memorandum-of-Law-in-Support-of-Motion.html -
Case l:18-cv-03501-JGK Document 227 Filed 03/04/19 Pagel of 63
DEMOCRATIC NATIONAL COMMITTEE,
Plaintiff,
v.
THE RUSSIAN FEDERATION, et al.
Defendants.
___________________________________________________________
. . . . SAC thus alleges only that Russian agents gained access to stored communications—not that they intercepted communications contemporaneously with the communications’ transmission.
The DNC attempts to solve this problem by alleging, “[u]pon information and belief,” that Russian agents “monitored”—or at least had “access” that would “allow [them] to monitor”—DNC communications “in realtime,” “simultaneously with their transmission.” SAC ¶¶ 103, 128, 129. This does not suffice. First, a complaint must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. A complaint also must plead “factual content,” and not just “conclusory statements” that parrot “the elements of a cause of action.” Iqbal, 556 U.S. at 678. The DNC’s allegations simply assert the legal conclusion that the hackers “intercepted” emails, but do not back up that legal conclusion with factual allegations that the hackers obtained any particular communications contemporaneously with their transmission. These allegations thus fail to provide fair notice as to what the DNC’s claim is. The Campaign and the Court have no way to determine whether the DNC has plausibly alleged that communications were intercepted at all, whether the Campaign knew or had reason to know of any such interception, or whether the Campaign made any use of the supposedly intercepted communications.
Second, the DNC’s allegations in all events do not establish that the Campaign “kn[ew] or ha[d] reason to know that the information was obtained through ... interception.” § 2511(1)(d). The SAC nowhere alleges that the Campaign knew or should have known that Russian agents acquired the emails contemporaneously with the emails’ transmission. It is particularly telling that, even though the DNC hired “a cybersecurity technology firm” to “investigate the attack” and conduct a “forensic analysis of the DNC’s computer network” (SAC ¶¶ 110-11), the DNC pleads interception only “[u]pon information and belief” (id. ¶¶ 103, 128, 129). If the DNC cannot tell whether there was an interception, the Campaign surely cannot have known or had reason to know there was an interception.
. . . . . . . . . . . . {END p. 50} . . . . . . . . . . . .
Good find. It’s at page 50 of the PDF, but page 40 of the Memo of P’s and A’s. They do in fact send a shot across the bow of the DNC.
It will be interesting to see if the DNC claims can survive hearsay and best evidence objections. It’s hearsay because Crowdstrike will be testifying as to what documentary said, instead of letting the server show it, and best evidence, because Crowdstrike won’t have the server available, but will instead go by some kind of records that it has.
Great Post. Understanding exactness is Key.
Go Get ‘em, Vlad.
In cases like this, sometimes I believe Vlad Q’s,
He is a bad actor and Convincingly let’s those actions overwhelm and distract the goofy Media Complex from actions that EXPOSE the Deep STATE.
Seth Rich was not available for comment.