Mr. Leduc was ordered to deliver
a further affidavit of documents and the defence lawyer was permitted to cross-examine on the affidavit so as to discover precisely which of the contents on the private site were relevant to the issues in the action.
The FBI's court filing
further alleges that The Intercept, unnamed in the
affidavit, provided the government agency, presumably the NSA, with a copy
of the leaked
document to verify its authenticity prior to publication.
(iv) Where the court is not satisfied on the basis
of the
affidavit and the other evidence before it that the right to withhold inspection is established, it may: (a) conclude that the evidence does not establish a legal right to withhold inspection and order inspection; (b) order a
further affidavit to deal with matters which the earlier
affidavit does not cover or on which it is unsatisfactory; (c) inspect the
documents (inspection should be a solution
of last resort and should not be undertaken unless there is credible evidence that those claiming privilege have either misunderstood their duty, or are not to be trusted with the decision making, or there is no reasonably practical alternative); or (d) order crossexamination
of a person who has sworn an
affidavit (however, cross-examination may not be ordered in the case
of an
affidavit of documents.