Montgomery V Etreppid #833 - 8/18 OSC Hearing Transcript

Case 3:06-cv-00056-PMP-VPC Document 833 Filed 09/03/08 Page 1 of 150
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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
BEFORE THE HONORABLE VALERIE P. COOKE, MAGISTRATE JUDGE
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DENNIS MONTGOMERY, ET AL.,
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Plaintiff,
-vsETREPPID TECHNOLOGIES,
ET AL.,
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Defendant.
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No. 3:06-cv-056-PMP-VPC
August 18, 2008
United States District Court
400 S. Virginia Street
Reno, Nevada 89501
VOLUME I
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TRANSCRIPT OF
CONTINUED SHOW CAUSE HEARING
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A P P E A R A N C E S:
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FOR THE PLAINTIFF:
Randall Sunshine
Ellyn Garofalo
Attorneys at Law
FOR DEFENDANT ETREPPID:
Stephen Peek
Jerry Snyder
Attorneys at Law
FOR COUNTER-DEFENDANTS:
Gregory Schwartz
Bridgett Robb-Peck
Attorneys at Law
FOR INTERESTED PARTY:
Carlotta Wells
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Proceedings recorded by mechanical stenography produced by

computer-aided transcript
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Reported by:
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KATHRYN M. FRENCH, RPR, CCR

NEVADA LICENSE NO. 392
CALIFORNIA LICENSE NO. 8536
(775) 786-5584

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Reno, Nevada, Monday, August 18, 2008, 1:30 p.m.
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THE COURT:
Please be seated.
THE CLERK:
This is the date and time set
for a Motion and Continued Show Cause Hearing in case number
3:06-cv-056-PMP-VPC, Dennis Montgomery, and others, versus
eTreppid Technologies, and others.
Present on behalf of plaintiff.
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Randall Sunshine, and Mark Gunderson.
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defendants, Stephen Peek and Jerry Snyder.
Ellyn Garofalo,
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Present on behalf of
Present on behalf of counter-defendant,
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Gregory Schwartz and Bridgett Robb-Peck.
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of interested party, Carlotta Wells.
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THE COURT:
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All right.
Present on behalf
Thank you very much.
As I indicated before the lunch recess,
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we do have just a few more items from the case management
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perspective that I would like to take up.
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First, there are two motions that have been fully
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briefed.
The first is the Montgomery parties' Motion to
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Compel Compliance with the January 22nd, 2008 order, and order
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to show cause why eTreppid should not be held in civil
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contempt, docket 684.
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through 687.
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parties replied at 767.
And then there are declarations 685
ETreppid opposed at 729.
And the Montgomery

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So I'll go ahead and briefly -- I'm interested.
I've read all of the papers the parties have filed, and so I'm
interested in any comments that counsel would like to make in
support of their positions.
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So, Mr. Sunshine, is there anything you would like

to add, sir?
MS. GAROFALO:
THE COURT:
MS. GAROFALO:
Your Honor --
Ms. Garofalo.
-- I have spoken to Mr. Peek
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during the lunch break.
We have now received a good number
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of documents, purportedly, responsive to the books and
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records inspection requests.
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It has been a voluminous task.
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representations to the Court, or certainly to Mr. Peek, that
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everything has not been produced, when we cannot definitively
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identify documents, all the documents we have, the universe of
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documents, and identify documents that we think are missing.
We are having those reviewed.

I would not want to make
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I would, therefore, ask that the Court continue this
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motion until such time that we've had a chance to complete the
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review.
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motion, and we would respectfully withdraw it.
It may then be unnecessary to move forward with the
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THE COURT:
All right.
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Ms. -- how do you pronounce your name?
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MS. GAROFALO:
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THE COURT:
And how long -- and
Garofalo.
Garofalo.
Thank you very much,

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Miss Garofalo.
undertake that review?
How long do you think you're going to need to
MS. GAROFALO:
Well, we have experts looking
at it.
They're complicated. It is taking a while.
There are, I believe, about 30 boxes of documents.
THE COURT:
Right.
That's fine.
What I'm
interested in doing is if you could just give me a date by
which you'll let the Court know one of two things.
thinking at the September status conference, maybe in your
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Case Management Report, you can simply report to the Court
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that you want this considered, or you want to withdraw it in
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about a month's time.
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MS. GAROFALO:
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THE COURT:
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MR. PEEK:
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THE COURT:
I'm
That would be fine, Your Honor.
Any objection to that, Mr. Peek?

No objection, Your Honor.
So, Miss Clerk, with respect to 684,
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the consideration of that motion will be deferred until the
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September Case Management Conference.
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And Miss Garofalo --
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MS. GAROFALO:
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THE COURT:
Garofalo.
-- Garofalo has indicated that
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their experts are reviewing that motion, and are going to
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determine whether they will proceed with it, or whether it
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will be withdrawn, and will so advise the Court in their Case
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Management Report for September.

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The next motion is docket 726.
This is the motion
of Opspring, LLC to compel production of tax returns of
Warren Trepp.
at docket 761, and a reply at docket 783 in support of
that motion.
Management Report, eTreppid took the view that certain
issues were raised in the reply that weren't addressed in
the original motion itself.
occurred.
And that drew an opposition from Warren Trepp
And I did note, I think, in eTreppid's Case
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So, Ms. Garofalo.
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MS. GAROFALO:
So, I am aware that that
Again, Your Honor, I'll keep this
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simple.
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returns are relevant and ought to be produced.
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that reason parallels, to some extent, the reason that the
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eTreppid parties are requesting that Mr. Montgomery produce
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his tax returns.
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and Mr. Trepp were members, are members of that LLC.
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there is a dispute relating to the copyright claims and as to
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whether or not Mr. Montgomery was indeed an employee subject
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to the Work For Hire Doctrine, or a partner, so to speak, a
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member of the LLC.
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There is really one reason why we believe the tax
ETreppid is and was an LLC.
And, actually,
Mr. Montgomery
And
One of the reasons that the eTreppid parties wanted
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to see Mr. Montgomery's tax returns was to see how he
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characterized his income; whether it was characterized as
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employee income, salary, or something else.

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We believe that

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we are entitled to the same information, relevant to being
Mr. Montgomery and Mr. Trepp had the same positions with the
company.
partner, a member of the LLC, as opposed to an employee,
that would be relevant and bear on Mr. Montgomery's argument
relating to the employee work for hire issue.
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If indeed Mr. Trepp characterized himself as a
THE COURT:
All right.
Mr. Snyder.
MR. SNYDER:
Thank you, Your Honor.
The sole reason stated here for relevancy of the tax
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returns is how Mr. Trepp's, as I understand it, employment
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status might impact the determination of Mr. Montgomery's
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employment status.
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argument is that somehow these two people were in an identical
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position, vis-a-vis eTreppid.
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income was characterized on his returns is relevant, to the
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same extent, Mr. Trepp's is.
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provided any factual support to suggest that.
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The factual basis for Montgomery's
Thus, the way Montgomery's
And I'm not sure that they have
The two individuals were both members of eTreppid,
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certainly, but that -- it doesn't follow from that,
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necessarily, that they were both employees or non-employees,
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or independent contractors, or something other.
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THE COURT:
And the --
Excuse me, Mr. Snyder.
Mr. Montgomery was a Chief Technology Officer.
And
Mr. Trepp -- and I haven't looked at all of the iterations of

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the agreement -- was Chair of the Management Committee at one
time.
president or -- what was he?
I don't know if that changed.
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MR. SNYDER:
I think Mr. Frye was the
I don't recall Mr. Frye's position.
He was a secretary.
THE COURT:
MR. SNYDER:
Oh, all right.

And there are substantial
differences between the manner in which the two individuals
were compensated for most of the duration of eTreppid.
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Mr. Trepp did not draw a salary.
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did, for the entire, entire time.
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could be in his tax returns is really not relevant to Mr. --
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to whether or not Mr. Montgomery was an employee.
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Furthermore --
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THE COURT:
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MR. SNYDER:
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Mr. Montgomery, in contrast,

The information that
Well -- go ahead, sir.

I'd rather address your question
then go down a blind alley here.
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THE COURT:
Well, one of my questions is I
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think that the Montgomery parties say in their motion that
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there
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Montgomery parties asserted, that they feel bear on this
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issue of Mr. Trepp's tax returns, unclean hands, and so on
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and so forth.
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an excerpt from the amended -- from their complaint that, yes,
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at paragraph 42 of the Amended Complaint:
are also affirmative defenses that Mr. Montgomery, the
And, that I think they quote in their motion
"Improperly used

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his majority interest to produce Montgomery shares, the value
of holdings, pay himself an exorbitant salary," and so on so
forth.
And so they say they're interested in looking at
Montgomery parties' affirmative defenses to these defenses
to eTreppid's claim for misappropriation of trade secrets.
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Would those affirmative defenses implicate

Mr. Trepp's tax returns and how --
MR. SNYDER:
Well, we have no idea because we
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have asked specific interrogatories to the Montgomery parties,
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asking that they articulate the basis for these claims.
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the responses we've gotten have not -- have been so devoid
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of detail, that we really can't evaluate whether or not
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Mr. Trepp's tax returns could impact that.
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see any reason that's before the Court to think that they
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would.
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I certainly don't
Furthermore, this motion is being brought by
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Opspring rather than Montgomery.
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Opspring has the same basis to assert that defense that
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Montgomery might.
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THE COURT:
Right.
And I'm not sure if
And I'm going to ask
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Ms. Garofalo about that, because I thought that was odd.
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I'm sure there's an explanation for it.
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MR. SNYDER:
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And
Okay.
And
The last point I would like
to make, quickly, is that, to the extent the Court is inclined

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to grant the Motion to Compel and compel production of
Mr. Trepp's tax returns, we would ask that that production
be limited to reflect only information on those tax returns
showing income from eTreppid because, obviously, there is,
there is a number of sources of income.
When the Montgomery parties produce their tax
returns, we asked and the Court granted, that they be produced
without redaction.
seeking those for, one of the things they were relevant for,
Because one of the issues that we were
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is to find out whether Mr. Montgomery had been earning
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income from other sources, potentially, in violation of his
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contractual obligations to eTreppid.
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allegation here.
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There's no such
So if there's any sources of income that are
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non-eTreppid, they're certainly of no relevance at all to
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these proceedings.
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And those should be redacted.
THE COURT:
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Thank you, sir.
Ms. Garofalo.
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MS. GAROFALO:
Yes, Your Honor.
I think,
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actually, Mr. Snyder explained to the Court why it is
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relevant.
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any salary.
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was paid until we see his tax returns.
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relatively broad.
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Mr. Snyder said that Mr. Trepp did not receive

Of course, we have no way to know how Mr. Trepp
So, relevance is
And these tax returns go, again, to how Mr. Trepp

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was paid, how he was treated.
The affirmative defenses
clearly set forth arguments, allegations that Mr. Trepp, who
controlled the company, treated himself differently, treated
himself in a way that might be in breach of his fiduciary
duties to his minority partners, and that Mr. Montgomery's
interests were diluted through these transfers of money and
so forth.
the tax returns.
information, nothing else that we could possibly rely on
All of that cannot be known unless we can review

Or there, really, is no equivalent
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to obtain the information that we need.
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THE COURT:
Why is, why is -- and I meant to ask
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you this -- why it Opspring making this request?
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Mr. Montgomery do it?
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MS. GAROFALO:
Why didn't
Your Honor, I don't know the
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answer to that.
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know why there's an anomaly and who made the request.
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don't know why it was done that way.
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find that out for the Court later this afternoon, but I cannot
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answer that question.
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We came into this fairly recently.
THE COURT:
I don't
And I
So I can certainly
All right.
Well, let me just say this.
I am mindful that both
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you and Mr. Sunshine are coming into this case, for you, at an
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unfortuitous time, given the volume of work that you're facing
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in getting up to speed.
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frustration that because of the number of lawyers prior to
But, I think I alluded earlier to my

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your firm's involvement in the case but, also, subsequent,
that I will expect the answers to the questions the Court
poses to be answered.
expecting that.
that's going to be very important to the Court in terms of
how you proceed forward in this case.
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And I want to be reasonable in
I'm just giving fair notice to you that
Mr. Snyder, did you wish to say anything further?

And I'll give Mr. Garofalo the last word, of course.
MR. SNYDER:
Yes.
I just had a quick point to
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make.
Ms. Garofalo stated that there's no other potential
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source for this information.
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We've already produced every check eTreppid has ever written.
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That's a potential source for this information.
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W-2s or K-1s that eTreppid issued to Mr. Trepp is a potential
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source for this information.
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Well, of course there is.
Any 1099s or
The notion that his tax returns are the only
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potential source for this information is just not accurate.
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So there's certainly other less intrusive means, less invasive
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of Mr. Trepp's privacy, to obtain this information.
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some of those the Montgomery parties have already availed
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themselves of, and they have documents which would shed light
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on this.
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And
Some of them they have not.

So, I think it's not accurate to say that this is
the only way to get this knowledge.

THE COURT:
All right.
Miss Garofalo.

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MS. GAROFALO:
I would respectfully disagree
with Mr. Snyder.
the information that we are seeking.
stronger parallel to the case in which Mr. Montgomery was
required to produce his tax returns and the reason why.
There is information relating to transfers, relating to
characterization of compensation that can only be found in
Mr. Trepp's tax returns.
I think it is the only way to get some of

And, I think there is a
And on that basis, we'll submit, Your Honor.
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THE COURT:
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All right.
Thank you.
Well, first of all, my observation about
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some of this discovery litigation that we've had in this case
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is that it impresses the Court, on both sides, that there has
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sort of been this tit-for-tat, sort of back and forth about,
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well, you got this.
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cause.
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I'm hopeful that today marks a turning point in that process.
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I want this.
You got an order to show
We want an order to show cause, and so forth.
And
But that having been said, I'm not suggesting
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that this motion is not made without merit, and that I'm not
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seriously considering it.
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I'm, what makes sense to me, when I issued the order allowing
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Mr. Montgomery's tax returns to be disclosed, it was for the
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reasons that Mr. Snyder articulated, in that there -- that
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seems to the Court to really be tied closely to this whole
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copyright claim, and how his employment is characterized.
I most certainly am.

(775) 786-5584
I think what
And

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his tax returns, seems to me, to implicate whether he's an
employee or independent contractor.
a limited extent, that with respect to some of the claims
alleged in the Montgomery parties' Amended Complaint, that,
in turn, Mr. Trepp's tax returns may be a part of that.
But I, I do agree, to
It troubles me, however, that according to
Mr. Snyder, discovery has been taken to try to clarify and
learn what those claims are outlined in the first Amended
Complaint.
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And he's just represented to the Court that it's
so far not clear.
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I'm going to grant the motion in part and deny it in
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part.
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will be required to produce his tax returns.
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so far as, at this point, he will disclose -- produce those
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portions of his tax returns concerning any compensation that
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he's received from eTreppid.
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I'm going to grant the motion in so far as Mr. Trepp

But, only in
Now, what was -- what were the years -- Mr. Snyder,
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you might recall this -- the Court ordered disclosure of
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Mr. Montgomery's returns?
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MR. SNYDER:
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MS. GAROFALO:
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MR. SNYDER:
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MR. PEEK:
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Do you recall?
I believe it was '98 through 2005.
Was it six?
I believe it was six, because there
was a stub year, Your Honor.

THE COURT:
Six.
First part of January.
All right.
Then I'll do the same

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for Mr. Trepp.
It will be the tax returns from 1998 through
2006.
those tax returns as it concerns income from eTreppid only.
But I am limiting, at this point, the disclosure of
Now, if that -- if you find, if Montgomery's counsel
finds, or Opspring, I should say, engages in discovery and you
want to renew your motion for more tax information, you have
leave to do that.
which I'm going to grant the relief requested.
be the Court's order.
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But, at this point, that's the extent to
MS. GAROFALO:
And that will
Your Honor, may I just seek
clarification --
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THE COURT:
Yes.
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MS. GAROFALO:
-- with respect to the term
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"compensation."
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that Mr. Trepp received certain, perhaps bonuses, perhaps cars
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were paid for, trips.
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of compensation.
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Court as to just what the Court means in its order as to
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compensation.
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I suspect, although, of course, I don't know,
I would include that in my definition
And I would like clarification from the
THE COURT:
All right.
Let's talk about how we
want to define compensation.

Mr. Peek.
MR. PEEK:
Your Honor, I certainly would expect
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that in the preparation of the books, the tax returns for
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eTreppid, LLC, there certainly would have been, if there was

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income attributed to a car or some other -- something else
associated with the operation of eTreppid, that that would
have been passed through and would have been included in the
Court's request or in the Court's order.
would expect as I look through and review the tax returns,
that that would be included.
THE COURT:
MR. PEEK:
THE COURT:
So, I certainly
All right.
So, I mean, I understand that.
What I'm going to do is, I can't --
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I don't know what the universe of that compensation from
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eTreppid will be, but I'm going to order the parties to, when
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you review those tax returns, sir, you understand exactly --
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MR. PEEK:
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THE COURT:
I do.
-- obviously, what Montgomery --
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what Opspring has asked for.
And to the extent there are
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issues, I urge you strongly to work together to resolve them
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and clarify what constitutes compensation.
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be an issue, you can raise it at the September Case Management
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Conference.
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raise it.
And should there
Montgomery, and Opspring's counsel can certainly

And if you have a problem, we'll resolve it.
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MR. PEEK:
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THE COURT:
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your point is well taken, Ms. Garofalo.
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you want to work today to try to come up with a definition --
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I think I understand.
I don't know what more -- I think
MS. GAROFALO:
But unless the two of
I'm confident Mr. Peek and I can

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work out most if not all of the issues related to the tax
return order.
MR. PEEK:
And the Internal Revenue Service
tells us what it is, Your Honor.
Ms. Garofalo and I need to come up with a different
definition.
THE COURT:
MS. GAROFALO:
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MR. PEEK:
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MR. PEEK:
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Good for you, Mr. Snyder.

I know that probably doesn't mean
anything to Mr. Sunshine or Ms. Garofalo.

THE COURT:
Well, just don't get in trouble
because you'd come to this Court.

MR. PEEK:
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misdemeanors, don't you.
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THE COURT:
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MR. PEEK:
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May I have just a minute, Your Honor.
tells me three weeks, Your Honor.
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Thank you, Mr. Sunshine.
Mr. Snyder is going to go to Burning Man, so he
THE COURT:
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Oh, right.
This will take some time to review.
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And my partner, Mr. Sunshine,
must be -THE COURT:
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That occurred to me, but --
just reminded me, could we have a date by which those returns
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I don't think that
That's right.
You get all the
We do.
So three weeks, Your Honor.
that date is from this date.

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Whatever

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THE COURT:
I think that's sufficient.
MR. PEEK:
THE COURT:
MS. GAROFALO:
Is that Labor Day?

Any objection, Ms. Garofalo?
No.
We would just like to have
the information before the depositions, before Mr. Trepp's
deposition.
THE COURT:
MR. PEEK:
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So that three weeks would be
September 8th, if I'm reading the calendar correctly.

THE COURT:
That's correct.
So, Monday,
September 8th, 2008.
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MR. PEEK:
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THE COURT:
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Right.
All right.
And we may do it sooner, Your Honor.

Right.
Very good.
The next issue I would like to take up
15
is this question of the privilege log, which I apologize if I
16
caused confusion earlier this morning about what I was talking
17
about with respect to the July Case Management Report.
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This issue arose, as I think I indicated earlier
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this morning, as a consequence of the assertion by the
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Montgomery parties of a common interest agreement.
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Montgomery parties filed a Motion For Protective Order, which
22
this Court denied without prejudice, and we had a discussion
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at the July Case Management Conference about this issue.
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And now this is my recollection, and I haven't -- I didn't,
25
over the lunch hour, go back and listen to the tape, but my

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The

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recollection was we had this -- the Court spent a great deal
of time coming to, trying to understand the Montgomery
parties' position, which is fine.
Then at the hearing, my recollection is that
Ms. Klar said, well, really, she thought it was something
that could be probably fairly easily worked out; that it
did not involve a large number of documents.
recall if she said just a handful.
characterization.
I don't
That might be an unfair
But my recollection was, look, it's not
10
going to be that many documents anyway, and so why don't we
11
prepare these privilege logs.
12
So, the idea was there were two privilege logs.
One
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supplied in camera to the Court.
14
giving this Court more detail about the subject matter of the
15
items that were asserted the common interest agreement, I
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guess was asserted -- well, I'll get to that in a minute.
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And then a different, shorter version would be supplied to
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everyone else, all of the other parties.
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one I received.
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And that privilege log was
And so that's the
And I, of course, read Mr. Snyder's concerns in
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eTreppid's Case Management Report, which say there's no
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description of materials withheld; no identity of the author;
23
the date it's written.
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were versus authors, and the reasons held.
25
There's just -- who the recipients
So, I asked earlier this morning if I could take a

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look at that.
would like to make:
are the subject of this privilege log.
issue.
comment about my understanding, my impression from Ms. Klar,
that there would be far fewer that would be the subject of
the privilege log.
And
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And I have.
And here are some comments I
That there are 244 communications that

That's the first
I make that comment in light of my earlier
Two, I'm assuming that, in both my in camera

version -- I can tell you this.
This is no secret.
I don't
10
think it's a big issue -- and in the one provided to counsel,
11
the privilege asserted is just attorney/client privilege.
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Period.
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said.
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a long subject matter category which discusses, describes
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more in detail the subject matter.
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other counsel, did not get that.
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eTreppid and the other parties received, does track, as far as
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the dates and the participants in the communication.
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I'm just letting everybody know that.
That's all mine says.
My in camera -- whoever that is needs to stop -- has
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That's all everyone else's
And the other people,

But it does track the, what
And so
Here are some problems that I have as a practical

matter.
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One, it's out of chronological order, which is --
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just it gives me a headache with the number of pieces of paper
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that all of us are trying to contend with.
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to follow.
So, it's very hard
There are 2006 dates, and then there are 2007.

(775) 786-5584

20
Here on page 19, 11-15-06.
And that's not helping me.
The other issue that I have is there are, I counted
of the, in these 244 groups of communications, I count 24
people whom I don't believe were represented by Mr. Flynn.
Well, there's Mr. Flynn, that that 24 does not
include Ms. DiMare, Al Rava, but includes all of these other
people.
these people were, who nine of these people are.
of them.
And I did get a sheet that advised me who nine of
So, seven.
I knew two
But there are 13 people I don't know
10
who they are, and why the attorney/client privilege is
11
implicated.
12
And what I do note on these communications, is
13
that -- and so I'm really unclear about what we're doing here.
14
Of the 244 communications, I count four that are simply
15
between Mr. Flynn and Mr. Montgomery or local counsel.
16
four out of the 244.
17
no secret to anybody because the communication participant
18
list of the same -- Edra Blixseth and Michael Sandoval appear
19
on, with a few exceptions -- well, Michael Sandoval not quite
20
so much, but -- and then there are all these other people.
21
don't know who they are.
22
Just
But, I've got, there are lots -- again,
I don't know.
So my question, I guess, is is this the basis -- I'm
23
asking Montgomery's counsel, Montgomery parties -- are you
24
saying, well, these conversations are subject, all of these
25
conversations are subject to the attorney/client privilege

(775) 786-5584

21
and, even if they were waived, they're subject to the Common
Interest Doctrine, and so we shouldn't have to produce these?
So, that's my first question.
MS. GAROFALO:
It's my -- I have not reviewed
all of the documents that are listed on the list, but it was
my understanding that in preparation of the list, they focused
on documents that were perceived to be part of the common
interest privilege.
the attorney/client privilege, much the way a joint defense
10
And that was perceived as an adjunct to
agreement is in a criminal matter.
11
There is documentation to and from lawyers to an
12
interested group of people relating to the litigation itself,
13
in which they are all either parties, or have an interest.
14
is my understanding that that is what is reflected, or was
15
intended to be reflected on the privilege logs.
16
THE COURT:
Okay.
For example, just for an
17
example, you don't need to turn to the pages, but here's
18
May 4, '07, Dennis Montgomery, Michael Flynn, and Edra
19
Blixseth.
20
Edra Blixseth, Michael Sandoval, Carla DiMare, Al Rava.
21
In other words, Mr. Montgomery's lawyers are talking to
22
Mr. Sandoval and Ms. Blixseth.
23
It
Here's 12-1-06, Michael Flynn, Dennis Montgomery,
So, 9-27-06, Michael Flynn, Edra Blixseth,
24
Tim Blixseth, Jack Kemp -- the Congressman? -- Michael
25
Sandoval, Dennis Montgomery, Carla DiMare, Phillip Stillman,

(775) 786-5584

22
Al Rava.
parties are saying that they have with the inadequacy of the
privilege log as to them, I'm just not understanding where the
attorney/client privilege is on a lot of these communications,
and why there isn't a waiver.
the Common Interest Agreement applies.
does not shed any light.
people are.
I mean, so apart from the problems that the other
And if there is a waiver, why

And that is -- so this
And, I don't know who a lot of these
MS. GAROFALO:
Your Honor, what I would propose
10
to the Court is that we, again, table this perhaps until the
11
next hearing, at which time we will review the documents.
12
Mr. Sunshine and I will review the list, narrow it down, try
13
to work out any issues we can with Mr. Peek, and get the
14
Court something that at least makes sense for us to discuss,
15
if there still are outstanding issues.
16
THE COURT:
All right.
Well, the other
17
issue I have, just so you know, is one of the concerns
18
that -- and this is a problem with e-mail communications.
19
certainly -- you can have a seat -- is that in the olden days,
20
when people used to write letters, you had a letter to someone
21
and from someone.
22
so an e-mail might start out from person A to person B, then
23
C, D and E are copied.
24
there are these discussions.
25
And, nowadays, we have e-mail strings.
E responds to A.
And
And
And on it goes, and
So that's a problem, because it's hard -- I can't

(775) 786-5584

23
discern who the author of these documents is.
the benefit of the in camera longer subject matter, but I'll
just say part of that's not cutting it for me, the long
subject matter, description, in terms of why these shouldn't
be produced.
So what I'll do, unless counsel -- yes, sir.
7
8
And I have
MR. SCHWARTZ:
If I could be heard just briefly
on this issue.
THE COURT:
10
You may, sir.
MR. SCHWARTZ:
On behalf Atigeo, today is the
11
first day we've seen this privilege log in any form.
12
have a couple of concerns.
13
And I
It was not my understanding that the Court was going
14
to take the privilege log and rule on waiver as to specific
15
documents.
16
that the Montgomery parties moved for a protective order as to
17
a broad class of documents.
18
This, procedurally, is a little bit unusual, in
What I thought was happening here was that motion
19
was denied.
20
a privilege log.
21
opportunity to look at that.
22
disagree, sir, but let me just make a point.
23
The Montgomery parties were ordered to produce

And the other parties would then have an
If the -- well, you can
The eTreppid parties then have an issue as to any
24
particular document; or all of them, if necessary.
25
bring a Motion to Compel.
They can
But, there is no standing motion to

(775) 786-5584

24
compel any particular documents.
THE COURT:
That's true.
MR. SCHWARTZ:
You're correct, sir.
The reason I raised this is
Atigeo, and/or Michael Sandoval individually, may have
concerns with the production of specific documents.
may want to be heard, and we ought to have the right to be
heard, if there is going to be a motion to compel as to those
documents.
And we
I'm not representing to the Court that we do as to
10
anything specific because I've just seen this.
11
Court is going to rule as to production of specific documents,
12
I would like the opportunity for Atigeo and Sandoval to be
13
heard as to those documents.
14
But, if the
So I suggest that, after the revisions, if eTreppid
15
wants to move to compel production, why they're free to do so.
16
But that then allows everybody the ordinary opportunity to be
17
heard.
18
19
THE COURT:
20
MR. PEEK:
Thank you.
Your Honor, I respectfully disagree
21
with Mr. Schwartz, because I think what Mr. Schwartz is
22
looking at is the public privilege log that was supplied;
23
whereas, what the Court is looking at is the in camera
24
submission.
25
actually have the transcript.
And as I understood from the transcript -- and I

And I can certainly confirm to

(775) 786-5584

25
the Court that Ms. Klar told the Court, on page 107 of that
transcript, lines 5 through 7, she said:
enormous number of documents, and generally, what the subject
matter relates to" -- that was the in camera submission.
think the Court is addressing the in camera submission.
"That is not an
It was my understanding, contrary to Mr. Schwartz,
that there was a standing order, and what the Court was going
to do was review those in camera to determine whether or not,
one, there was a waiver of the attorney/client privilege;
10
and, two, if there was a waiver, are they covered by the
11
common interest privilege.
12
So I think, respectfully to Mr. Schwartz, I agree
13
with him perhaps the other privilege log which was given to
14
the parties, that may be the subject matter of more meet and
15
confer and motions to compel.
16
it was my understanding from reading the transcript, is that
17
that was a submission that was going to the Court, and the
18
Court was going to then rule on that in camera submission and
19
compel them or not compel them.
20
But, the in camera submission,
And with respect to the proposal that there be a
21
further submission, I'd certainly -- if Ms. Garofalo thinks
22
that she can narrow this down, I welcome that opportunity.
23
welcome the opportunity, certainly, to meet and confer with
24
her further.
25
log which you have in camera is insufficient.
But, what I would suggest is that the privilege

(775) 786-5584
And I think,

26
and I hate to impose this on the Court, is the actual
documents themselves are the ones that should be submitted
in order for the Court to determine whether or not they are
the subject matter of the common interest privilege, and the
attorney/client privilege.
Court referenced for example, why is Congressman Kemp --
THE COURT:
MR. PEEK:
Because it's only then, as the
I don't know if that's who it is.

That's who it is, Your Honor.
represent to the Court that that is who it is.
I can
Why is he, why
10
is Tim Blixseth, who is now the estranged husband, and maybe
11
now the divorced husband of Edra Blixseth, there as well?
12
So, there's a lot of waiver issues.
And,
13
respectfully, Your Honor, as the Court knows from the
14
pleading, if you go back and look at the Request For
15
Production, and responses to the Request For Production,
16
there was no objection at all in that response to request
17
for production with respect to a common interest privilege.
18
That request was extant in November of 2007.
19
recently that, suddenly, an epiphany, a light bulb went off,
20
and they said, oh, by the way, we don't have to produce
21
because of this.
22
And it's only
Again, it's just one more of those indicia of delay.
23
And well, I didn't like -- we didn't get what we wanted here.
24
Let's try another round here.
25
the opportunity to meet with Ms. Garofalo or Mr. Sunshine to
And so I think that I welcome

(775) 786-5584

27
see if we can narrow it.
what the Court has.
THE COURT:
However, I don't have the benefit of
Well, what I'm noting, I'm just
looking at my court record, my docket 760.
after I say what we're doing, I say:
It just says,
"The Court notes for the record that notwithstanding
the production of the privilege log, the Court reserves its
determination whether the Montgomery parties have waived their
assertion of the Common Interest Doctrine."
10
11
I mean, that's all I -- and I might have said a lot

more.
12
MR. PEEK:
Well, but that's what I understood,
13
too, Your Honor, to say.
14
today, if we're here to address that.
15
to reserve that until it gets further opportunity to review --
16
THE COURT:
So that would result in a ruling
Well, right.
But if the Court wants
But one thing that
17
troubles me is what Mr. Schwartz has said, is he just got this
18
today.
19
Is that right?
20
MS. ROBB-PECK:
21
MR. SCHWARTZ:
22
THE COURT:
23
Yes, Your Honor.

Yes.
You just received the privilege log?
I thought everybody was supposed to receive it.
24
MS. ROBB-PECK:
25
THE COURT:
Your Honor, that was --
You asked for it, Ms. Robb-Peck.

(775) 786-5584

28
MS. ROBB-PECK:
I did.
I specifically asked.
And while I don't want to cast aspersions on anyone, the
discovery has been going hot and heavy between these parties
for a long time.
defendants get left out.
THE COURT:
You didn't get one either, Ms.
MS. WELLS:
No.
MR. SCHWARTZ:
And the government and the third party
Wells?
Not until this morning.
And, Your Honor, the issue is
10
also, specifically, it's not just that we don't have the
11
identification of the documents --
12
THE COURT:
13
MR. SCHWARTZ:
14
I know.
-- we need a chance to look at
these documents to the extent we have them.
15
THE COURT:
16
All right.
17
18
I know.
I get it.
MR. PEEK:
sets.
I know.
I know.
I understand.
But we're still dealing with two
We're dealing with the in camera --
19
THE COURT:
I understand.
20
MR. PEEK:
21
THE COURT:
22
MR. SCHWARTZ:
-- and the other set.

I understand.
With all due respect, Your Honor,
23
I don't think that's an accurate characterization.
24
Honor knows what happened at the last --
25
THE COURT:
What's not accurate?

(775) 786-5584
But, Your

29
MR. SCHWARTZ:
You've got two -- if I -- well,
I'll let the Montgomery parties respond to this, but you've
got two privilege logs.
4
5
One just has more detail.
THE COURT:
thing.
That's right.
They're the same
One has more detail.

MR. SCHWARTZ:
regarding production.
And --
We have a motion to assert a privilege.
THE COURT:
10
We don't have any standing order
That was denied without prejudice.
MR. SCHWARTZ:
Correct.
And so now if eTreppid
11
wants to move to compel something, they're certainly free to
12
do so.
13
my client can respond to.
14
But, there's nothing specifically on the table that
So, with that, I'll submit.
15
THE COURT:
I understand.
16
MR. SCHWARTZ:
17
THE COURT:
Thank you.
Okay.
First of all, this is --
18
there are, there's the government, and then there's
19
Mr. Sandoval and Atigeo.
20
that everyone else is given.
21
Ms. Robb-Peck made a specific request, please give
22
whatever everyone else is getting.
23
happen.
24
case.
25
They are to be given the
papers
In fact, at the July hearing,

us
And that, again, did not
This is the last time that's going to occur in this

And if it happens again, I will issue sanctions.
It's not fair -- Mr. Sandoval, in particular, his

(775) 786-5584

30
name is all over this privilege log.
that his attorneys saw it.
I mean, and I assumed
Yes, sir.
MR. SCHWARTZ:
I apologize for interrupting.
Just to be clear, Your Honor, I do welcome the Court's
admonition to the parties about including us, so we're not
the red-headed stepchild.
things from eTreppid.
Court's admonition is clear that all parties need to include
10
But, we have also not received
And so I want to be sure that the
us in whatever happens.
11
THE COURT:
Oh.
12
MR. SCHWARTZ:
13
MR. PEEK:
All right.
Thank you.
Your Honor, with respect to
14
Mr. Schwartz's comment that these are not the subject of a
15
motion to compel, I remind the Court that in eTreppid's
16
RFP two, request number 26, we asked for all communications
17
e-mails, et cetera, to Sandoval, Blixseth.
18
THE COURT:
19
MR. PEEK:
20
21
February 21st.
And that was ordered.

That was the Court's order
So -THE COURT:
And that, the Court -- the
22
Montgomery parties said we don't understand for sure what
23
you mean by that.
I'm just --
24
MR. PEEK:
Well, that was part of it.
25
THE COURT:
Well, wait, wait, wait.

(775) 786-5584

31
1
2
And so, on Friday, I said, no, produce everything in

their entirety.
And that is, that order is here.
But, listen, we need -- we have other business to
attend to.
This is what I'm going to do.
I am going give
the Montgomery parties one last opportunity to review the
documents they've identified in their privilege log.
have outlined the deficiencies the Court finds from the in
camera documents I received.
people are.
And I
I don't know who many of these
I don't know what Common Interest Agreement there
10
is.
11
I mean, I have obvious problems with what's been provided.
12
It's insufficient.
13
So if this is what is being provided, I'm not finding --
It is imperative that all the parties, henceforth,
14
receive everything everyone else does.
15
goes to everyone.
16
interest in the subject of the privilege log, so he should
17
have gotten it, long before now, as should the government.
18
There's just -- all right.
19
And so that admonition
And, obviously, Mr. Sandoval has an
So I'm going to -- it is my belief, as Mr. Peek has
20
stated, that with respect to e-mails in this litigation, the
21
Court has ruled on the e-mails, in so far as they are e-mails
22
that were the subject of requests for production number 26.
23
can't remember which set whether it was one or two.
24
MR. PEEK:
25
THE COURT:
RFP two, Your Honor.

Request For Production two.

(775) 786-5584
The

32
Court ruled on that, and ruled again on Friday.
get one last shot, the Montgomery parties, at revising their
privilege log, if they wish to assert these privileges.
to the -- now, if Mr. Sandoval -- if counsel for Atigeo and
Mr. Sandoval -- I don't -- was Atigeo a party when --
MR. PEEK:
So counsel
They were not, Your Honor.
And
When
the Court's orders were entered in February, they were not a
party.
THE COURT:
10
11
MS. ROBB-PECK:
MR. PEEK:
13
THE COURT:
15
We hadn't been served, I don't
believe.
12
14
Right.
That's correct.
Right.
I don't think you had been
served.
Well, let's see what happens with that.
And then
16
if you want -- what I want in September is the revised
17
privilege log that needs to be produced within two weeks.
18
19
20
What date is that, Miss Clerk?

THE CLERK:
Your Honor, that's actually, Monday,
September 1st, which is a holiday.
21
THE COURT:
Oh.
Well, make it the 2nd.
22
THE CLERK:
Tuesday, September 2nd.
23
THE COURT:
Tuesday, September 2nd, to all
24
counsel, the short form.
25
you have to identify who these people are.
But, it's got to be clearer.
And
And you have to,

(775) 786-5584

33
if you're asserting some attorney/client privilege, or you're
saying there's a Common Interest Doctrine, you have to say
why you're asserting it.
documents.
Otherwise, you're producing the
However, if Mr. Schwartz, on behalf of his counsel
has concerns and wants to move for a protective order, or
you feel that your client has some concerns that are being
implicated, you can bring a motion --
MS. ROBB-PECK:
10
THE COURT:
-- to raise that issue.
And then if
11
you can resolve it, fine.
12
And at the September Case Management Conference, I'll address
13
them.
14
MR. PEEK:
If not, you can all file reports.
Do I understand, Your Honor, that
15
there will be supplements to both?
16
privilege log, as well as the Court's in camera privilege log.
17
18
THE COURT:
Yes.
I'll call it the public
There will be supplements to
both that address the concerns I've outlined.
19
All right.
Ms. Garofalo, do you have any questions?
20
MS. GAROFALO:
21
THE COURT:
I don't, Your Honor.
Thank you.
Well, I think that concludes the
22
matters that concern the Court as to the case management
23
issues.
24
25
And we're now prepared, the Court is now prepared to

proceed with the Continued Order to Show Cause hearing.

(775) 786-5584
Just

34
let me take a minute to let myself get organized.
All right.
The order I'm referring to, as
counsel get prepared, is my timekeeping order.
interested in keeping time.
It states:
I've become
The order is docket number 659.
"ETreppid shall have 6.5 hours to present evidence
and to call the following witnesses:
Warren Trepp; Jonathan Karchmer; and Len Glogauer.
Dennis Montgomery;
"The Montgomery parties shall have six hours to
10
present rebuttal testimony, including Dennis Montgomery;
11
Fulcrom inquiry representative; FTC consulting
12
representative."
13
So what I'm going to do is keep the time.
It does
14
not matter to me how counsel for the parties uses your time.
15
In other words, I'm assuming that you'll be calling all of
16
these witnesses.
17
know I'm keeping the time carefully.
18
up, your time is up.
19
20
21
22
But, it's up to you.
I'm just letting you

And when your time is
All right?
Mr. Peek.
MR. PEEK:
That's the full six-and-a-half hours,
whether I use it with one witness or three witnesses?

THE COURT:
Well, I'm assuming that your
23
representations to the Court were that you would have a
24
certain amount of time for Mr. Montgomery, and then you
25
planned to call these three others.
So, I mean, I would

(775) 786-5584

35
assume that's still the game plan.
MR. PEEK:
I'm going to attempt to finish
it in two hours.
two-and-a-half, I may just have to shorten somebody else.
5
6
THE COURT:
That's fine.
Short somebody else.
That's fine.
7
8
But to the extent that perhaps I go to
All right.
So are you prepared to proceed,
Mr. Peek?
MR. PEEK:
I am, Your Honor.
If I could just
10
have a moment to pass out -- so that we don't consume that
11
time -- the exhibits binders.
12
Court --
13
THE COURT:
14
MR. PEEK:
15
THE COURT:
16
MR. PEEK:
You may recall that the
Oh, yes.
Those were returned to us.
Go ahead.
So I'm just going to take a moment to
17
have those passed out to everybody.
18
for the Court.
19
other parties.
One for the clerk.
20
THE COURT:
21
MR. PEEK:
22
THE COURT:
I have six copies.
One
And then four for the
All right.
Ready, Your Honor.
Before you proceed, sir, I asked
23
the clerk of the court to let us know the status of the Court
24
exhibits, and any other exhibits that either were offered or
25
we need to have admitted.

(775) 786-5584

36
1
2
3
4
5
6
7
8
9
So, Miss Clerk, can you report on that, please.

THE CLERK:
Yes, Your Honor.
hearing, defendant's exhibit 1 has been marked, not admitted;

At the June 24th hearing, exhibit, defendant's
exhibit 6, 9, and 31 marked.
exhibits 1, 2, 3, 4, 5, 6, 7, 9, 12 and 16 have been admitted.

MR. PEEK:
I'd move for the admission of 1, 6,
9, and 31, Your Honor.

THE COURT:
11
MR. SUNSHINE:
to look back at those?
Any objection?
Your Honor, may we have some time
We can't remember those --
13
THE COURT:
14
MR. SUNSHINE:
15
Not admitted;
And at the same June 24th hearing, the Court's
10
12
At the June 10th
Sure.
-- by number.
Can we get back to
the Court on that?
16
THE COURT:
17
MR. PEEK:
18
THE COURT:
All right.
Yes.
They're the same number -They're defendant's, just so you
19
know, 1, 6, 9, 31 were marked, but not admitted.
So we can --
20
Miss Clerk, can you just remind us in the morning --
21
THE CLERK:
Yes, Your Honor.
22
THE COURT:
-- that we need to try again.
23
THE CLERK:
Yes.
24
THE COURT:
All right.
25
And, counsel, I'm going
to defer this to allow Mr. Sunshine and Ms. Garofalo until

(775) 786-5584

37
tomorrow morning to also look at this.
And also, Mr. Peek, and counsel, with respect to the
Court's exhibits, they're, I guess, exhibit, Court's exhibit
10, 11, 13, 14, 15, 17, and 18 were not admitted.
don't -- I anticipate there's no objection to that, but please
take this afternoon, this evening to check that out.
we'll report on that in the morning.
8
9
10
MR. PEEK:
I have no objection.
And I
And
I remember what
they are.
I'm reporting to the Court as well, Your Honor, and
11
I'll have to let Mr. Sunshine know, apparently, when we were
12
reprocessing and adding exhibits for today's hearing, that
13
there may have been a change to some of the numbering.
14
I apologize to the Court for that.
15
request for admission of 1, 6, and 31, until I can clarify
16
whether or not we changed those numbers.
17
THE COURT:
18
MR. PEEK:
19
20
21
All right.
Because I don't want Mr. Sunshine to
THE COURT:
Okay.
So we'll defer, and we'll
take care of this housekeeping matter in the morning.

MR. PEEK:
23
THE COURT:
25
So, I will defer my
say, well, I looked at 1, 6, 9, and 31 --
22
24
And
Okay.
All right.
So the time is 2:35.
You may call your witness.

MR. PEEK:
Mr. Montgomery is on the stand,

(775) 786-5584

38
Your Honor.
THE COURT:
Mr. Montgomery, please.
3
DENNIS MONTGOMERY,
called as a witness on behalf of the Defendant,
was sworn and testified as follows:
4
5
6
7
THE CLERK:
Please state your full name for the
record.
THE WITNESS:
THE CLERK:
10
11
12
Dennis Lee Montgomery.

Thank you.
Please be seated.
DIRECT EXAMINATION (resumed)

BY MR. PEEK:
Q
Mr. Montgomery, when we had left off on June 24th, I
13
had been discussing with you the e-mails that you had
14
produced that you claim, that you said were responsive to
15
our requests for all e-mails provided to media, whether it be
16
the Wall Street Journal, New York Times or NBC news.
17
Do you recall that from two months ago now?
18
Yes.
19
And that was Exhibit 9.
20
And then we certainly had Exhibit 9 and replaced and
21
redacted.
So if the clerk could hand him Exhibit 9.
22
in Volume II.
23
Okay.
What page?
24
Just the exhibit itself, sir.
25
All right.

(775) 786-5584
That's

39
1
2
I'll be asking you some questions about it, but I just
wanted to have it available to you.
Some preliminary questions.
We all know that
there were e-mails delivered to the Wall Street Journal and
NBC News, do we not?
I believe so.
And your testimony has been that you don't know yourself
whether or not you delivered those to Mr. Wilke -- and I'm
just going to deal with Mr. Wilke first -- or whether
10
Mr. Flynn did that.
11
Is that correct?
12
Yes.
13
Have you had any opportunity to go back and review any
14
of your correspondence, or documents of these, particularly,
15
to determine whether or not it refreshed your recollection as
16
to whether it was you or Mr. Flynn who delivered those to the
17
Wall Street Journal?
18
No.
19
Okay.
And I think you told us, and I just want to make
20
sure that I'm correct, is that all of these e-mails came,
21
originally, from your computer.
22
Am I correct?
23
No.
24
Okay.
25
I don't believe I said that.

You said that they had been placed in some kind
of -- well, your commuter, or some other form of electronic

(775) 786-5584

40
media.
Is that correct?
I believe so.
In other words, Mr. Flynn didn't have these in his
5
6
7
8
9
possession at a time before you did?

A
Before I did?
Uh, I don't -- I don't think I understand
the question.
Q
Well, you had the e-mails in some electronic form, did
you not, before --
10
Yes.
11
-- Mr. Wilke ever came into the picture?
12
Yes.
13
Okay.
14
Yes.
15
And on what type of media or storage did you have the
16
And you had them in electronic form, did you not?
e-mails?
17
I think it was a disk storage.
18
And has that disk drive been produced?
19
No.
20
And where is that disk drive?
21
Well, I'm still going through the rest of the drives.
22
Okay.
So in the last two months -- well, actually, since
23
at least February -- or excuse me, since November, when the
24
request was sent out, you have still been unable to review all
25
of the hard drives to determine on what hard drives you may

(775) 786-5584

41
have kept the e-mails --
That's correct.
-- you received, or you took from eTreppid?
That's correct.
Okay.
6
7
8
9
10
And what is your explanation for not having done
that, despite the Court's orders?

A
Because I've been working on the protected information
under the Protective Order.

Q
Okay.
And I believe you have submitted some hard drives
to the government, with respect to that?
11
Yes.
12
Okay.
Do you still have the media -- excuse me, the hard
13
drives which contained all of the e-mails that were taken by
14
you and put on these hard drives?
15
I'm not certain if that's the case or not.
16
Okay.
17
And what would have happened to all of the
e-mails?
18
You mean the hard drives?
19
Yeah.
20
I mean, they could have fail.
21
Hard drives or whatever.

We have a number of drives
that are dead.
22
Okay.
23
I don't know.
There's a lot of information.
24
been a lot of drives.
25
have been in multiple people's hands.
There's
And as I've stated before, the drives

(775) 786-5584

42
1
2
Okay.
But you now have them in your hands, is
that correct?
Well, I think the one that --
I'm talking about all of the e-mails, the original
complete e-mails, PST files in native format; you have all
of those, do you not?
Have all of those e-mails?
Yes, sir.
No.
10
11
12
I didn't say that.
correctly.
Q
Okay.
Well, where did those e-mails originate that were
then provided to somebody to provide to Mr. Wilke?
13
Off a drive.
14
Okay.
15
16
17
18
If I did, I didn't say it
Off a drive.
And were those the complete, original e-mails, the
PST files in native format?

A
I don't understand.
I don't -- restate the question
again.
19
Do you know what a PST file is?
20
Yes, I do.
21
You know what a complete original is?
22
You mean a PST file?
23
Yes.
24
Okay.
25
And native format, you understand that?

(775) 786-5584

43
The PST file.
In native format; meaning it has all the metadata
associated with it.
Yeah.
Where are those?
The, uh -- I, I found one, one drive recently.
And I
was about to produce it, but I ended up doing the Source Code,
to try to get that part done today.
And when did you find that one drive?
10
Um, about two weeks ago.
11
And when did you begin to look for those drives that
12
13
14
15
contained the original PST files in native format?

A
Well, what I've been looking for is all the stuff under
the Protective Order.

Q
That's not what I asked for, sir.
16
When did you begin to look for the PST files in
17
native format that were the subject matter of the request to
18
produce?
19
In February.
20
So February, until today, you have only recently located,
21
in the last two weeks, a Drive that may contain some of those
22
original PST files in native format?
23
That's correct.
24
And do you have an explanation as to why you were unable
25
to locate it from -- in the last, well, six months?

(775) 786-5584

44
I've been going through the drives one by one.
Okay.
And you recently produced, I believe, 21 hard
drives.
You are aware of that, are you not?
Yes.
And were those hard drives that you produced hard drives
that had, that you obtained through your backing up of the
various computers at eTreppid?
These are not the FBI ones, I presume.
10
what -- I would say, yes.
11
that you're referring to.
12
Okay.
I, I don't recall
I think I, I understand the ones
So the 21 that were recently produced were, came
13
from backups that you had taken from the eTreppid computers,
14
is that correct?
15
They were backups that were made.
16
Backups that you made, or backups that others made?
17
I don't recall who, who made them.
18
Okay.
But somebody made them?
19
Yeah.
Yes.
20
And I think we went through this before, but I'll ask it
21
again, is that wouldn't you expect to see PST files on these
22
backups, these 21 hard drives?
23
No.
24
Why not?
25
Because most of the time the file was open and it was

(775) 786-5584

45
passed over.
And so most of the time, but not all of the time.
That's probably correct.
Okay.
So there should be some PST files in the backups,
should there not be?
Yes.
Okay.
And did you look through any one of these 21 hard
drives to determine whether there were or were not any PST
files?
10
Yes.
11
And did you find any?
12
No.
13
And did do you have an explanation as to why you found no
14
PST files from the 21 hard drives that you obtained from the
15
backing up of the various computers from eTreppid?
16
Restate that.
17
I'm sorry I'm insulting you to restate the question.
18
You're not insulting me.
19
But, well, you make faces every time I ask you a
20
question.
21
Well, it's because I think the question was clear.
22
Obviously, it wasn't clear to me.
23
I'll ask it again to make it clear to you.
24
25
And I'll ask
it exactly the same way I asked it before, if I can.

You told us that you took backups of all of the

(775) 786-5584

46
computers, correct?
I said I made backups.
You told us that during the course of the backups that,
from time to time, there would have been backups of the e-mail
folders which are PST files, correct?
That's correct.
What explanation do you have that, on the 21 hard
drives that you obtained from making backups of the eTreppid
computers, from time to time, why there are no PST files on
10
11
12
13
14
there?
A
Because at some point they may have been transferred onto
another drive.
Q
Well, is that they may have been, or they were
transferred to another drive?
15
I don't recall either way.
16
So the only explanation you have as to why there are no
17
PST files on these 21 hard drives recently produced, is that
18
they may have been transferred to another hard drive?
19
Yes.
And I told you I found one recently.
20
I understand you found one recently.
But I'm just trying
21
to understand, sir, that your only explanation for there not
22
being any on the 21 hard drives, is that you may have but --
23
you don't know whether you did, transfer PST files to another
24
hard drive?
25
I wouldn't say that's the only explanation.

(775) 786-5584

47
Well, what other one is there?
They've not been in my possession the entire time.
Are you suggesting that somebody may have deleted the PST
files from that?
I don't know that for a fact either way.
Okay.
through the list you gave me before.
8
9
And so, who, besides yourself -- well, let me go
One, they weren't in the possession of the FBI,

those 21 hard drives?
10
No.
11
That's correct?
12
That's correct.
13
Okay.
14
So the FBI wouldn't have done anything about them,
correct?
15
That's correct.
16
And I think the other people that you described to us,
17
from time to time, who may have had possession of these are
18
your lawyer, Michael Flynn -- that's one?
19
Yes.
20
Secondly, would be Michael Flynn, Junior?
21
That's correct.
22
And I don't believe there's anybody else that you told
23
us.
24
Yes.
25
Is that correct?
Nobody else?

(775) 786-5584

48
No.
Who is that?
Al Rava.
Excuse me, Al Rava?
There is another person.
That's a new name that we haven't
heard before.
Who a Al Rava?
Well, he was an associate of Mr. Flynn's.
So he was your lawyer?
That's correct.
10
Are you suggesting that any one of those three
11
individuals may have deleted the PST files from the 21
12
hard drives?
13
I'm not suggesting that either way.
14
Okay.
Well, you're suggesting that people who had
15
possession of it may have compromised those hard drives.
16
So the only --
17
You've asked me --
18
-- information is somebody deleted the PST files?
19
You asked me for another possibility.
20
Well, is that a possi -- just sort of a -- there's always
21
a possibility.
I gave you one.
Is there a real reasonable probability that --
22
I wouldn't rule out anything with Mr. Flynn.
23
Okay.
24
25
And when was it that you gave Mr. Flynn the
backups for the eTreppid computers?

A
You mean the backup drives that I had?

(775) 786-5584

49
1
2
The backups drives that you had, that should have
contained PST files.
A few days before the raid on my home.
Okay.
5
6
And then for how long did he have them in his
possession?
A
Um, that may not be accurate.
Can you ask the previous question again.
When did you give them to Mr. Flynn?
All right --
10
You said a few days before the raid.
11
It may have been before that.
It may have been -- some
12
of them may have been when I first met him in late January or
13
early February of '06.
14
Okay.
15
So sometime, again, prior to the raid.

And for how long did he keep them?
16
I would say five or six months.
17
Okay.
18
And then what happened to them after Mr. Flynn had
them in his possession?
19
Didn't we go through --
20
We did with respect to the FBI inventory.
21
I think you did.
22
I didn't go through it, however, with everything else
23
that you had.
24
I think you did, but I'm --
25
I went through it with respect to the hard drives; the

(775) 786-5584

50
terabyte and the 500 gigabyte.
with the more recent 21 hard drives you just produced.
3
4
But, I did not go through it
I don't -- what do you mean the terabyte?
I'm not
being --
You produced, sir, in May --
Oh, yeah.
-- one terabyte hard drive, and one 500 gigabyte hard
drive, sir.
You're right.
10
You told us, and I went through the examination with you
11
there --
12
Okay.
13
-- where the data had been.
14
And you gave us an
explanation.
15
So are you going to tell us that the same
16
explanation that you gave me and this Court, in the two
17
June hearings, would be the same explanation that you would
18
give today?
19
I'm trying to short circuit it, if I can.
20
No.
21
No?
22
Well, I don't have my exact explanation.
23
It was a different explanation.
See, the facial expressions really gets annoying.
24
I'm sorry it gets annoying to you, sir, but that's me.
25
Uh --

(775) 786-5584

51
Your evasiveness bothers me, too.
MR. SUNSHINE:
THE COURT:
Go ahead, Mr. --
THE WITNESS:
All right.
I'm not trying to be evasive,
THE COURT:
I know.
Mr. Peek was alluding to.
He's now clarified it.
ahead and answer the question, sir.
11
BY MR. PEEK:
Q
What happened to them after that?

A
I think -- I thought I said five.
15
THE COURT:
16
THE WITNESS:
17
You said five to six.

Okay.
you're referring to the father?
19
BY MR. PEEK:
21
22
23
Five to six months.
Uh, they were moved to Seattle -- well, Mike Flynn,
18
20
So, go
They were in Mr. Flynn's possession for six months.
13
14
All right.
I think we're -- you had some confusion about what
10
12
All right.
Your Honor.
Your Honor --
You said -- I thought you meant Mike Flynn, your
attorney, is who you gave them to -A
Yes.
But, he put them in a storage facility that was
under was Al Rava's name in San Diego.
24
Okay.
25
So I don't want -- at least that's what I was told it

(775) 786-5584

52
was.
I don't -- I really don't know that for a fact but, I
mean, that's what I was told they were.
Let me just ask a quick question then.
Yes.
Is that true then of all backup drives, including the
data that was produced to us on the terabyte drive and the
500 gigabyte drive, is they were put in a storage unit under
Al Rava's name in San Diego?
9
10
11
12
13
Uh, I'm thinking.
is that's correct.
Q
Okay.
16
Yes.
And then they, they stayed there for five to six
months?
A
I don't know.
14
15
I'm not -- I think the answer to that
I'm thinking.
It was roughly that amount of time.

Q
Okay.
So that would put us sometime in August, September
of 2006?
17
Six; that's correct.
18
Where did they go from there?
19
Seattle.
20
In your possession, or in somebody else's possession?
21
Uh, they were -- there were three scenarios.
One, there
22
was a storage facility in Seattle.
You know, a commercial
23
storage facility.
24
and kept them with him in a storage facility in Portland,
25
Oregon.
Michael Flynn, Junior took them originally,

(775) 786-5584

53
1
2
Okay.
So there are three locations, now, of these hard
drives at one time?
You mean -- not now.
You mean at the time.
At that time that they were returned to you from the
storage facility rented by Mr. Rava in San Diego, you said
they were returned, and then they wound up in three other
locations.
8
9
10
11
Was this all -- were they separated at that time

into three lots?
A
No.
I would just say, generally, they were separated.
Not necessarily for any specific reason.
12
I didn't suggest for any specific reason.
13
I, I --
14
You said there were three lots.
15
Well, they were originally, probably, put into, into --
16
when they were moved to Seattle, they were put into a storage
17
place originally.
18
into Portland, where I described to you.
19
20
And then Michael Flynn moved them himself
THE COURT:
Excuse me.
Was that Michael Flynn,
Junior?
21
THE WITNESS:
22
THE COURT:
23
THE WITNESS:
Junior.
Junior.
Thank you.
And, subsequently, they came back,
24
at some point, and were kept at the office.
25
BY MR. PEEK:

(775) 786-5584

54
Which office?
Opspring.
Where?
In Seattle.
In Bellevue?
Yeah.
You told us Bellevue, so I want to make sure that's
clear.
Yeah.
10
So they remained -- they went to a commercial storage
11
facility in Washington first, correct?
12
Yes.
13
And then all of the hard drives went to Mr. Flynn.
And
14
you believe he separated them and kept some in his home, and
15
some in the storage facility in Portland, Oregon, is that
16
correct?
17
But I'm -- I'm -- that's correct.
18
Okay.
19
20
21
And then sometime after that, they were all
returned back to you?

A
Right.
Well, they -- that's correct.
I moved back from
Seattle down into Palm Springs.
22
And that's --
23
Everything came back.
24
The Rancho Mirage?
25
Yes.

(775) 786-5584

55
When did that happen?
I believe August of '07.
THE COURT:
THE WITNESS:
5
6
7
Yes.
BY MR. PEEK:
Q
So since August of '07, these hard drives have been in
your custody and control, is that correct?
Yes.
Okay.
10
Be a year ago?
And when the hard drives were first created, did
they include PST files?
11
I don't recall if they did or not.
12
Well, you said that when you took backups, that there
13
were -- there should have been some PST files on some of the
14
hard drives?
15
16
17
18
Most of the time they were open, so they never got pack
backed up.
Q
Okay.
Yes.
20
Okay.
22
But some of the time they were not open, and you
took them?
19
21
I said that.
So there should be PST files on some of these hard
drives, should there not?

A
No.
You asked me for an explanation and I thought I
23
said there's a possibility they were moved, at one point, on
24
to another drive.
25
When did you transfer them to the other drive?

(775) 786-5584

56
I don't recall specifically when that happened.
Did you in fact transfer all of the PST files to
3
4
5
6
7
another drive?
A
I don't remember doing that.
I'm not saying it didn't
happen.
Q
Okay.
So you have no recollection of whether you did or
did not?
That's correct.
And when you then were going to find the e-mails that
10
were ultimately provided to the Wall Street Journal and
11
NBC News, where did you find those e-mails?
12
You mean where did I get them off of?
13
Yes.
14
Off a hard drive.
15
Okay.
16
And is that the hard drive to which you
transferred them?
17
I don't know if it was or not.
18
But you at least have a recollection that you transferred
19
from a hard drive, the original PST files, with -- in native
20
format?
21
Most.
22
Off of this hard drive on to some other --
23
Most all the files at some point were transferred, if not
24
once, more than once, because the drives -- the original, the
25
very original drive from '98 or '99 might be a 40 gig drive.

(775) 786-5584

57
And, obviously, at some point, it got transferred on to an
80 gig drive and upwards.
Okay.
So are you telling this Court that, from time to
time, the -- well, are the hard drives that you produced, are
they the ones that you took from the backups, or are they
copies of some other drives?
It could be either.
So you don't know.
Well, ask your question again, specifically, what you're
10
11
asking.
Q
Well, you were telling us that you don't know
12
what capacity the hard drives had at the time you were
13
doing the backups.
14
In 1999, obviously, there was no 300 gig drive.
15
I'm just asking about the hard drives that were produced
16
now.
17
Okay.
18
Those are the 21 that were produced that have no PST
19
files.
You said, at some time, they may have had PST files on
20
them, correct?
21
It's possible.
22
Okay.
23
Yes.
Because, at some time, somebody's e-mail may have
been closed, correct?
24
Yes.
25
Or you may have gone to somebody in the office, like

(775) 786-5584

58
Mr. Glogauer, and said, Mr. Glogauer, close your computer down
because I'm going to do a backup.
Not necessarily.
But do you remember doing that, from time to time, with
No.
Very rarely ever did that.
Mr. Glogauer?
No.
You testified that you didn't ever do it or --
I don't recall.
-- you just don't remember.
10
11
Okay.
Getting back now to the e-mails that were
provided to the Wall Street Journal --
12
Right.
13
-- and to the NBC News.
14
Those came off of a hard drive,
correct?
15
Yes.
16
And were those complete PST files in native format?
17
I don't know if they were or not.
18
They were originally, when you did backups of them, they
19
had complete PST files in native format, did they not?
20
Probably.
21
Okay.
Yes.
And are you telling us that that -- that they --
22
that those complete PST files in native format no longer
23
exist?
24
I don't know.
25
Okay.
And certainly because you did produce e-mails to

(775) 786-5584

59
NBC News and to the Wall Street Journal, one could conclude
from that that you had them on those backup drives, correct?
I didn't say I produced them.
Excuse me?
-- directly.
But somebody produced them to them.
10
11
When they were made available to somebody to give to

the NBC News, they came from you, did they not, sir?
A
No.
I wouldn't say that either, sir.
It could have been
Mike Flynn.
12
13
I'm not saying that
you produced them.
8
9
Meaning --
You asked me this question before -Q
No.
What I'm talking about is the original e-mail,
14
before it ever got to NBC News or the Wall Street Journal,
15
you had them in your possession on the hard drive, did you
16
not?
17
I'm not certain that's the case.
18
Well, where did the e-mails that were given to the Wall
19
20
Street Journal and NBC News, where did they come from, sir?
A
I think I know your what you're asking.
21
to be evasive.
22
had possession of them.
23
24
25
I'm not trying
What I'm trying to say is Mike Flynn may have
That's not what I'm asking, sir.
I understand that
Mike Flynn may have had possession.

I'm just saying, at some time, there were e-mail

(775) 786-5584

60
PST files on a hard drive, correct?
Yes.
And one would obviously conclude from the fact that you
gave, or that -- excuse me, that e-mails were provided to
NBC News and the Wall Street Journal, that they had to come
from you originally, correct?
No.
Those -- then did somebody else hack into the eTreppid's
system and take those e-mails off of the individual computers?
10
I don't know.
11
Go ahead --
12
Do you want -- very early on, Michael Flynn may have had
13
But I just told you, at some point --
possession.
14
Sir, that's not my question.
15
Well, then I don't, obviously, understand it.
16
Well --
17
18
THE COURT:
asking --
19
MR. PEEK:
20
THE COURT:
21
22
I thought it was simple, Your Honor.

All right.
Aren't you asking this
question, and then maybe we can -- this will be helpful.

Here are e-mails that come from eTreppid.
23
MR. PEEK:
24
THE COURT:
25
Well, let me -- Mr. Peek, aren't you
Correct.
And someone had those e-mails to
start with.

(775) 786-5584

61
1
2
MR. PEEK:
THE COURT:
MR. PEEK:
THE COURT:
That's not what -- yeah, yeah.

I know.
And you don't care about
that.
MR. PEEK:
THE COURT:
10
Down the road, other people might
have been given copies of those e-mails.
That's what I'm
trying --
3
4
That's right.
I don't care -You don't care who, down the road,
might have gotten them.
11
You said, in the beginning, there were these
12
e-mails.
And that's what you're -- when you talk about
13
possession of the e-mails, that's what --
14
MR. PEEK:
That's what I'm talking about.
15
THE COURT:
16
THE WITNESS:
Is that what you're talking about?

If you're asking me did I have
17
possession of PST files that may have contained those
18
e-mails --
19
MR. PEEK:
20
THE WITNESS:
21
22
Yes.
Yes.
BY MR. PEEK:
Q
Okay.
So all of the e-mails that we have in Exhibit 9
23
that you have in front of you, you had, at one time, the
24
complete PST file in native format, correct?
25
I believe so.

(775) 786-5584

62
1
2
Okay.
And not only did you have those e-mails, you had
other e-mails as well, did you not?
Yes.
Okay.
And those e-mails, you're telling the Court now,
today, may have been transferred from the 21 hard drives you
recently produced, and may be even off of the terabyte hard
drive and 500 gigabyte hard drive you produced, to another
hard drive, correct?
I don't know if that's accurate.
10
Okay.
11
Well, there was no terabyte drive at the time of
12
Well, then --
eTreppid.
13
I know that.
14
Okay.
15
But, the files that you transferred on to that one
So --
16
terabyte hard drive to produce, came from backups, did
17
they not?
18
Yes.
19
Okay.
20
21
22
23
And the hard drive that you produced, the 500
gigabyte, also came from the backups as well, did it not?

A
No, I -- you mean were backups put on those drives?
Is
that the question?

Q
The question is did they, did the data that appears on
24
the 500 gigabyte come from the backups that you performed from
25
time to time at eTreppid?

(775) 786-5584

63
Yes.
Okay.
And none of those hard drives that you produced
recently, the 21, nor the two that you produced in May,
contain PST files.
We've established that, correct?
Correct.
I want to know is it then your position that all of the
PST files were transferred on to another hard drive?
I would say it's possible.
10
Okay.
11
Well, what you're describing, if it is true, they
12
13
Is it just possible, or is it more probable?
obviously had to go somewhere.

Q
Okay.
Now when you -- so when you went to find the
14
e-mails to -- that were ultimately given to the Wall Street
15
Journal and to NBC News, did they come off of the backups, or
16
from the tape to the drive to which you transferred?
17
You don't mean tape.
18
I corrected myself.
19
I don't know that answer.
20
Who was it that -- and may be -- I'm trying to be as
I said hard drive.
21
clear as I can -- who provided the original source e-mails
22
to the person who gave them to the Wall Street Journal and
23
NBC News?
24
I don't know that specifically.
25
The question, really, I guess is who downloaded

(775) 786-5584

64
those
e-mails, then, to give to whomever gave them to the
Wall Street Journal?
I don't recall.
Well, who would that person be, other than yourself, sir?
Oh, Mike Flynn.
Did Mike Flynn then go onto your hard drives and access
There's a good source there.
your hard drives and download the PST and download the
e-mails?
You mean the drives he had in his possession?
10
Yes.
11
I don't know that.
12
Okay.
Well, do you recall that you in fact are the
13
one who downloaded the e-mails themselves, and then gave to
14
somebody -- gave them to somebody, who then in turn gave them
15
to the Wall Street Journal?
16
17
When you say download, you mean export.
You don't mean
download.
18
I'm not trying to be clever.
I just --
19
Export them into some form, hard copy form.
20
I'm not certain.
21
Did you do that or did Mr. Flynn do that?
22
I don't recall right -- specifically which one of us did
23
24
25
that, if that's the question.

Q
Okay.
Well, in August of '07, they were in your
possession, correct?

(775) 786-5584

65
August of '07.
They were in your possession.
Oh, because they'd all been returned.
They'd all been returned.
And August of '06, I
think you said they were either in Mr. Flynn, Junior's
or Mr. Flynn, Seniors' possession, is that correct?
7
8
Or were they in the commercial storage facility in

Washington?
In August of --
10
'06.
11
I've lost my train of thought.
12
remember.
13
14
15
I'm just trying to
August of '06, I believe, is when I, uh -- that was

'07 when I moved to -Q
Well, you told us in August of '06 they came back to
16
you from Mr. Flynn, Senior.
And that they were then taken
17
to a commercial storage facility in Bellevue, Washington,
18
where they resided for a time.
19
Mike Flynn, Junior, who then took them to Portland, where he
20
put some in his home and some in a storage unit.
And then they were given to
21
Okay.
22
The question is they were in your possession,
23
What's the question?
I'm sorry.
August of '06, were they not?
24
No.
No way.
25
In whose possession were they, sir?

(775) 786-5584

66
Mike Flynn's.
Well, you told us that Mr. Flynn had them for five or
six months.
Right.
Then you took them back, took them to a commercial
storage facility in Washington.
7
8
Do you remember that testimony from just about ten

minutes ago?
I know, but I'm trying to be --
10
Okay.
11
-- I'm trying to be as clear as possible.
12
13
In April of '06, I still lived in, uh, Reno, and I

moved from -- can I just take a break for a second?
14
In April of -- okay.
15
THE COURT:
16
MR. PEEK:
17
THE WITNESS:
In --
Just take your time.

Take your time.
There's a lot of movement
18
with a lot of things during that period of time.
19
be accurate.
20
THE COURT:
21
22
23
24
25
I want to
Take your time.
Go ahead.
BY MR. PEEK:
Q
I want you to be as accurate as you can be?

You told us your earlier recollection, so I just
want to be sure I captured it right?

(775) 786-5584

67
1
2
June, July -- August of '06, I was working in Washington,
Um, but I did not have a house there.
And for --
You had an office though?
Yes.
And you had a storage facility?
Some pieces I feel like I'm missing.
remember.
8
9
I'm trying to just
Uh, so the question is in August of '07, did I

have --
10
No, no.
11
You're asking then if I had them in my possession, sole
12
possession.
August of '06.
No.
13
Okay.
14
Well, I mean, Mike -- at some point, Mike Flynn gave them
15
16
17
back.
Q
Well, did you have joint possession?
And I'm guessing that's the time period.

That's what you said to us earlier.
You thought it was
five to six months after you gave them to him in February.
18
That's right.
19
And so all I did was take a mental calculation of --
20
And then moved them into a storage.
21
been a storage facility in Seattle.
22
office in Seattle.
23
Junior.
24
25
But, it could have
It could have been in my
It could have been with Mike Flynn,
I'm just trying to understand in whose possession they
were in in August of '06?

(775) 786-5584

68
It could have been one of three peoples; Mike Flynn,
Junior, myself, and the office.
Okay.
parties the complete PST files in native format?
When is it that you will produce to the eTreppid
Within a week.
So on or before August 25th, I will have all of the
original PST files in native format that were provided to the
Wall Street Journal and NBC News?
No.
10
Okay.
11
I --
12
What will I have in one week?
13
I said if I had a drive with PST files on that drive,
14
15
Well, will I have --
so -Q
Sir, what I want is what the Court ordered, which is the
16
production of complete PST files in native format of all
17
e-mails provided to the Wall Street Journal and NBC News.
18
When will I have those, sir?
19
When I find it.
20
Okay.
21
I mean I haven't gone through all the drives, remaining
22
So your answer is just when I find it?
drives.
23
And how many drives are there?
24
Probably five to -- I don't know if it's five or seven.
25
Between five to seven.

(775) 786-5584

69
Okay.
I received your 21 hard drives on Thursday.
And
by Saturday afternoon, I was able to determine that eight of
them had no PST files.
4
5
6
7
Why is it it takes you so long to open and then

determine whether there are PST files on those hard drives?
A
I just open the drive and do a search.
You must have a
much faster computer than I do.
all.
It's just a laptop.
I just load it on a laptop.
It was loaded on a laptop.
10
That's
Simple laptop.
Why does it take you so long?
11
Because I'm very slow at it.
12
Okay.
And so can you tell us when you will produce all
13
of the PST files in native format of the e-mails provided to
14
NBC News and the Wall Street Journal?
15
When I've gone through every single drive.
16
When will that be, sir?
17
Well, I've got -- I had two hearings.
18
One the Source
Code.
19
Just asking you when, sir.
20
Okay.
21
Just give me a date.
22
I can't give you a date because --
23
Okay.
24
-- I --
25
So you cannot give us a date, despite the Court order to
I'm explaining to you.

(775) 786-5584

70
1
2
3
4
do so?
A
Well, I'm still producing protective files for the
United States Government.

Q
Are any of the e-mails that were provided to the Wall
Street Journal and the NBC News protected by the State Secret
Privilege?
Yes.
And some of those we went over last time, didn't we?
No.
10
And the government took some of those?
11
I don't think so.
12
Well, if you gave them to the Wall Street Journal, you
13
I mean, whatever they took, I --
did not have a good faith belief --
14
That was --
15
Wait a minute, sir.
16
When you gave -- when they were given to the
17
Wall Street Journal, were provided by you to somebody that
18
ultimately gave them to the Wall Street Journal, did you
19
have any good faith belief they had State Secret Privileged
20
information on them?
21
No.
22
Are you --
23
Wait --
24
-- telling us today that you have a good faith belief
25
that there is State Secrets Privilege on them?

(775) 786-5584

71
The documents that you see in the binder were not all
given to the Wall Street Journal or to NBC.
only a few of them were given.
We'll look at that --
Okay.
6
7
8
To my knowledge,
I -- but you keep saying when you give all, when
they were all given.

Q
Okay.
So, you don't have a date when you will provide
them either to me or to the government?
As soon as I find them.
10
Is that correct?
11
Well, that's not true.
12
I just want a date, sir.
13
As soon as possible.
14
So you can't give us a date, is that correct?
15
Not today.
16
Okay.
17
18
19
20
I mean I -That's all I want.
And you're aware, of course, the Court's orders
that are outstanding require you to do that?

A
But the Court has ordered me to do a lot of things all
simultaneously, and you can't do them all at once.

Q
Well, that's not really true, is it?
The Court
21
didn't order -- the Court ordered you to produce these in
22
February 2007 -- excuse me, 2008, did they not?
23
Produce what.
24
Produce these e-mails.
25
Yes.

(775) 786-5584

72
And you haven't done that since then?
Well, I've been looking for protected information for
3
4
the United States Government.

Q
Okay.
So then I would suspect then from that, that you
would have found all of the e-mails, hard drives that have all
of the e-mails on them, and would have at least been searching
them.
8
9
10
11
12
Is that correct?
A
You can't search that many drives all at once.
Maybe you
can, but I can't.

Q
Okay.
But you've only opened one of them in the last
two weeks, is that correct?
13
One what?
14
One drive containing PST files.
15
I found a drive.
16
You found a drive.
17
No.
18
So, okay then.
So, you haven't even opened it?
But I saw there are PST files on it.

And you haven't even then made a diligent
19
effort to determine whether there is or is not State Secret
20
Privilege information on them?
21
At that point, I got another contempt order for the
22
Source Code.
I immediately stopped what I was doing to look
23
for the Source Code.
24
That's not my question.
25
Well, that's my answer.

(775) 786-5584

73
My question, though, is you didn't make any effort then
to look at that drive to determine whether or not you had a
good faith belief that there was or was not State Secret
Privilege on it.
On which drive?
The one you said had PST files on it.
Yes.
It did have state secrets, those files I peeled off
already.
Okay.
10
Yes.
11
When did you do that?
12
Thursday.
13
Thursday of what week?
14
This week.
15
Thursday of last week?
16
Well, I mean -- it was either Thursday or Friday.
17
And it's your testimony that those have actually been
18
And so you sent them to the government?
delivered to the government?
19
Yes.
20
Okay.
21
Maybe it was today.
22
23
I mean, I think it got there.
I mean it was shipped Fed Ex.
Same
way I've shipped them all.

Q
All right.
So then there, obviously, are some of the
24
e-mails that you would have looked at that didn't have state
25
secrets privilege on them, is that correct?

(775) 786-5584

74
Maybe I'm stating it wrong.
I don't know whether you were.
I said there were files on there.
4
5
I didn't say there
were e-mails.
Q
I'm talking about the PST, sir.
The subject matter
here is only the PST files of the e-mails provided to the
Wall Street Journal and NBC News.
Okay.
That's all I'm talking about.
10
I understand that now.
11
So you have not delivered any of the PST files with
12
I got it.
native, in native format to the government, have you?
13
That's correct.
14
Okay.
15
And you've only recently found one hard drive two
weeks ago, correct?
16
Yes.
17
And you have not opened it to see what's on there; that
18
also correct?
19
Well, I mean, I saw that there were PST files on there.
20
Okay.
21
Now, with respect to those e-mails that are the
subject of Exhibit 9 --
22
Uh-huh.
23
-- those, I think you told us, were put into an ASCII
24
25
format.
Was that the term that was used last time?

(775) 786-5584

75
Text format of some type.
A text format.
I don't think so.
Okay.
Mike Flynn.
Okay.
Who did it?
So Mike Flynn then created all of the text files
that we see in Exhibit 9.
Is that your testimony?
No, it's not.
10
Okay.
11
I may have.
12
Okay.
13
14
15
16
17
Did you, did you do any of the ones in Exhibit 9?

I don't recall if I did or not.
So was it a collaborative effort then between you
and Mr. Flynn?

A
No.
I mean, I don't recall how it actually happened at
the time, how they ended up in that exact compilation.

Q
Okay.
You don't remember how they ended up there.
You
just know they ended up that way.
18
That's correct.
19
Okay.
20
And did you do that?
Yes.
And do you have an explanation as to why they're
out of date order?
21
No.
22
Because we talked about that last time.
Typically, an
23
e-mail string has the most -- you said you never heard that
24
term before.
25
Yeah.
You are familiar with it today?

You informed me of it.
Yeah.

(775) 786-5584

76
Okay.
Uh-huh.
The most recent date at the top?
Uh-huh.
The earliest date is at the bottom.
The date --
And they're in
descending order, correct?
I'm listening.
They're -- that's typically what an e-mail string looks
like, correct?
10
It could be an ascending.
11
Could be reversed; ascending, meaning the latest is
12
at the top, and the last is at the bottom; either in
13
descending or ascending order, correct?
14
That would be two possibilities.
15
But, generally, it's in descending order; with the most
16
recent at the top, and earliest at the bottom, correct?
17
I'll take your word for it.
I, I --
18
You've never seen, even when you open your own e-mail,
19
when you receive e-mail at dmontgomery@ncoder.com, and you
20
have a string, does it come to you differently than it does
21
everybody else in the world?
22
What?
23
Do the e-mails that come to you at Montgomery@ncoder.com,
24
come to you differently than they do everybody else; which is
25
that the most recent is at the top, and the earliest is at the

(775) 786-5584

77
bottom?
I don't have that Montgomery@ncoder.com.
Do you have -- you have something at Dennis@ncoder.com?
No.
That's not you?
No.
Okay.
I'm sorry.
I thought that was your e-mail
address.
So you guys are the one that's been gettin' in it?
10
I haven't even -- whoah.
Wait a minute.
If it's not
11
your e-mail address, then who could get into it?
12
you know somebody's getting into it?
13
It's not ncoder.com.
14
What is it?
15
Ncoder.net.
16
Ah, excuse me.
17
How would
Ncoder.net, yes.
So you have, when you get things at ncoder.net,
18
then do they come to you differently than they do the rest of
19
the world, which is not with the latest at the top, and the
20
earliest at the bottom?
21
That's correct.
22
They come to you differently?
23
Yes.
24
How do they come to you?
25
Priority.

(775) 786-5584

78
1
2
Priority.
Okay.
But we did establish that in Exhibit 9,
there are many of the e-mails that are out of order.
Do you remember that?
Yes.
And you don't know whether you or Mr. Flynn put them in
those, in that different order, correct?
That's correct.
And do you know why it was that they were put into
different order in the text files?
10
I have no idea.
11
You have no idea.
12
13
Okay.
And I think you told us that you met with Mr. Wilke,
at least, on one occasion, correct?
14
Yes.
15
Was it more than one or just one?
16
You asked me the same question before, and I think I only
17
met him one time.
18
And where was it?
19
Same place you asked me before.
20
I didn't ask you before.
21
Yeah, you did.
22
Was it in Seattle?
23
Yes.
24
Okay.
25
You asked me was it in Seattle.
Now, when you met with NBC News, how many
different occasions did you meet with them?

(775) 786-5584

79
MS. GAROFALO:
MR. PEEK:
Objection.
Relevance.
Your Honor, just, again, it just goes
to the good faith and bad faith of Mr. Montgomery, and the
nature in which he's producing the documents.
connect it up with a clip from MSNBC News.
THE COURT:
The objection is overruled.
Go ahead.
8
9
And I will
THE WITNESS:
I think one time.
BY MR. PEEK:
10
And where?
11
Uh, Mr. Blixseth's residence.
12
Mr. Blixseth's residence where?
13
Porcupine Creek Ranch.
14
That's also now the residence of Edra Blixseth?
15
Yes.
16
And when?
17
I don't know the exact date.
18
Do you know the year?
19
2006, I think.
20
In fact, it was in November of 2006, was it not, sir?
21
It might have been.
22
Okay.
And it was just before -- just, I think either
23
right after or right before the article appeared in the
24
Wall Street Journal -- on November 1st, 2006, was it?
25
I don't think so.

(775) 786-5584

80
1
2
Okay.
Well, then, do you have a recollection that it was
maybe in October or December of 2006?
No.
And who was present during that interview with MSNBC,
I don't remember specifically when it was, but --
Lisa Myers?
Michael Flynn --
Okay.
-- Carla DiMare, myself, Lisa Myers.
person.
I don't recall his name.
10
Was it Poppin or something like that?
11
Yeah.
12
Popkin.
13
Yes.
14
Okay.
15
Jim Popkin.
He's from NBC News, is he not?
And do you -- before that interview started, did
you provide e-mails to Lisa Myers or Jim Popkin?
16
Before that day, is that --
17
Before the interview started, sir.
18
Yes.
19
There was another
I mean, they were provided.
I don't recall if I
did or Mr. Flynn did.
20
Okay.
21
I don't think so.
22
And you in fact downloaded them off your computer, onto a
23
And they were on your computer, were they not?

No.
thumb drive, and went out and printed them out.
24
They were printed.
25
They were printed at Porcupine Creek, were they not, sir,

(775) 786-5584

81
the day of the interview?
I think they were taken off Mr. Flynn's computer.
You think they were Mr. Flynn's computer, not yours, is
that your testimony?
I think so.
I don't recall specifically, but --
They were taken off of a computer and put onto a thumb
drive, and printed out at the Porcupine residence before the
e-mails were handed to Lisa Myers, were they not?
They might have been.
10
Might have been or they were?
11
I don't recall specifically if they were or not.
12
So you don't have a recollection, as you sit here today,
13
that in fact the e-mails were taken off of a computer, put
14
onto a thumb drive, and then that thumb drive was taken, and
15
the e-mails were printed out from there.
16
No.
17
You don't recall that?
18
No.
19
Okay.
But you do recall, though, do you not, that
20
e-mails were printed out and handed to Lisa Myers before the
21
interview.
22
Yes.
23
Okay.
24
not?
25
And those e-mails came off of a computer, did they
We're just going around in a circle.

(775) 786-5584

82
They came off of a computer, did they not?
You mean there?
Yeah.
brought, I don't recall.
You don't recall that?
No.
Okay.
They were -- or if they were
And from where did those e-mails originate that
were then provided to Lisa Myers and/or Jim Popkin?
I don't know.
You don't know.
10
Well, you're asking me --
11
Right.
12
Definite.
13
Well, do you recall generally, sir?
14
No.
15
Do you have any recollection at all, as you sit here
I don't recall specifically.
16
today, as to how the MSNBC personnel, Lisa Myers and
17
Jim Popkin, received the e-mails that they showed on their
18
show?
19
No.
20
So you don't know if they came from a hard copy that was
21
brought there, or an electronic media --
22
I don't recall.
23
-- that were brought there, and then downloaded -- or,
24
25
excuse me, exported.

A
Michael met ahead with -- Michael met with them ahead of

(775) 786-5584

83
me, so --
Okay.
-- okay.
I --
I'm just asking what you did.
Michael did.
I'm not asking what
I'm want to know what you did.
I just gave you my answer.
Okay.
Do you recall during the course of that interview
there were, all of those e-mails were out on a table in front
of you and Ms. Myers?
10
They might have been.
11
Okay.
12
MR. PEEK:
13
14
I don't recall.
Do we have that clip?
Your Honor, this is Exhibit 33.

BY MR. PEEK:
15
This is a clip of the portion of --
16
Yeah.
17
-- the interview.
18
19
20
21
(Exhibit 33, videotape played.)

BY MR. PEEK:
Q
Now, you saw all those e-mails that were on the screen
there?
22
Yes.
23
Who provided those to Lisa at Porcupine Creek?
24
I don't recall.
25
Okay.
You don't know, again.

(775) 786-5584

84
1
2
But, you know that they were provided to her?

A
Well, I'm not sure the ones you're seeing in that table
are all -- they're just not regular e-mails.
that for a fact, one way or the other.
I don't know
Well, do you think NBC News just sort of grabbed a bunch
of e-mail that were unrelated to this case and just panned on
the screen?
I don't want to say that.
The ones that were panned on the screen, are those the
10
That's not my position.
ones that were provided to NBC News?
11
I don't -- I don't know.
12
Okay.
13
I would like to take a break, if you could.
14
MR. PEEK:
15
That's up to the Court.
16
17
THE COURT:
is 3:32.
I don't have control over that.
Well, we convened at 1:30.
So, we'll take a ten-minute recess.
18
MR. PEEK:
19
THE COURT:
20
All right.
21
(RECESS TAKEN.)
I still have 58 minutes?
57 minutes?
3:32, sir.
We'll be in recess.
22
THE CLERK:
Court is again in session.
23
THE COURT:
Thank you.
24
Go ahead, sir.
25
The time
MR. PEEK:
Please be seated.
Thank you.

(775) 786-5584

85
1
2
3
BY MR. PEEK:
Q
Mr. Montgomery, in addition to e-mails that we saw in
that clip, we also saw a video of the cruise trip.
Did you see that?
Yeah.
And where did that come from?
I don't -- I, I don't know.
Well, did it come from Mr. -- did Mr. Flynn have it?
Yes.
I mean I just don't know.
mean did he get it from Mr. Trepp, or --
10
No.
11
You had possession of that video, did you not?
12
Yes.
13
And somehow it got to the NBC News, did it not?
14
I believe I gave all that to my attorney.
15
That's not what I asked.
16
Okay.
17
It got to the NBC News.
18
19
20
21
24
25
Not that I know of.
Well -So, it got from you to NBC News,
is that your testimony?

A
I don't know the exact method.
If you're asking me if
that's my video, I believe so.

Q
Okay.
22
23
So you had that video.

Where is that video today?
I believe on my, on my home computer.
It was on my home
computer prior to the raid on my home.

Q
Okay.
And what efforts have you made to search for that

(775) 786-5584

86
1
2
3
video?
A
Well, you've got a disk drive copy of the computer that
was taken from the raid at my home.
I believe it's on there.
So, is it your testimony that you produced it?
Well, if producing the drive that --
When did you produce that drive?
That was one of the 21 hard --
One of these 21?
Oh, wait.
10
At some point you must have gotten the drives that
11
were taken.
12
were taken.
13
14
No, no, no.
It might be those drives.
It was the drives that
Which drives were it on, and have you identified which
drive in response to your --
15
Nine eleven.
16
-- production?
17
Drive 911.
18
Drive 911; is that a serial number?
19
Yeah, the last three digits.
20
Okay.
21
So if I were to find that hard drive that has
serial number ending in nine one one, I would find that video?
22
I don't know if it's that exact one, but probably.
23
So is it your testimony to this court that you have
24
25
produced it?
A
Yes.

(775) 786-5584
Yes.

87
1
2
Okay.
And you don't know when that hard drive was
produced?
Whenever you got them.
I don't know.
Well, I received a number of hard drives from you.
None
of which have said they were responsive to this Request For
Production as to all media -- all documents which would
include the video provided to NBC News.
8
9
On that particular drive that was taken from my home,
there were the pictures of the cruise.
10
the cruise.
11
was on there.
12
13
Okay.
A lot of other things, too, but that particular
But I was -- you were returned with that computer,
were you not?
14
I'm sorry?
15
That computer was returned to you.
16
17
There were videos of
Are you saying it was on the computer's hard drive

or a separate --
18
No.
19
And that computer was returned to you?
20
Yes.
21
And is it your testimony that you took an image of that
22
23
The computer's hard drive.
hard drive on your computer and produced it to me?

A
My testimony is that I produced the hard drive, which was
24
one of the, whatever they were, 21 drives to whoever copies
25
them.
And I don't.

(775) 786-5584

88
That's not my -- the testimony is did you -- is it your
testimony that the hard drive on your computer was copied, a
forensic image of that was made?
4
5
6
I don't know if they gave you the originals or the
forensic copy.
Q
Okay.
But it's your testimony that you provided to
somebody to produce to me the hard -- your computer.
somebody took an image of your hard drive and produced it
to me?
10
Yes.
11
That's your testimony.
Okay.
And
Because I, in the 21
12
hard drives, they did not say anything in the 21 hard drives
13
were responsive to this Request For Production.
14
responsive to one other, which is number 16.
15
Said it was
Well, all the pictures and the movies of all the cruises
16
I've been on, and, you know, family pictures and everything,
17
which we have all of it, is in there.
18
19
Okay.
So you've produced -- you produced that video
then?
20
Yes, I believe so.
21
I don't want -- I mean, I just want you to tell me yes or
22
no.
23
24
25
Have you done it?

A
I produced that drive that was taken from my home with
that information.
Yes.

(775) 786-5584

89
Okay.
I don't know.
When was your computer delivered to --
It wasn't my -- no.
You said it was on your computer, sir.
Listen, I'm trying to explain.
Okay.
When the FBI raided my home, illegally raided my home,
When was it copied?

I mean --
they took a lot of stuff out of my house.
One of the things
10
they took was that home computer in my house.
That home
11
computer had a hard drive in it that was running that home
12
computer.
That drive, I believe, ended in 911.
13
Is it an external hard drive --
14
No.
15
-- or an internal hard drive?
16
Internal.
17
Okay.
So then your testimony is you then took that home
18
computer and delivered it to somebody to copy, or somebody
19
came to your home and copied it?
20
21
No.
that drive.
22
Okay.
23
No.
24
Okay.
25
I took all of the drives that were taken, including
So you took the drive out of the computer?

Actually, Agent West did when he returned it.
So Agent West took the hard drive out of your
computer, and it became one of the hard drives that were

(775) 786-5584

90
returned to you, and it is now external to your computer.
2
3

A
Yes.
When they -- when he returned the equipment, and
they were counting the drives, he took -- he opened the
computer.
of course, that's all been cutoff and --
It would be on the video of the entire return but,
What do you mean it's all been cutoff?
I was there four-and-a-half hours.
9
10
55 minutes of video.
Q
Okay.
11
by that.
12
55 minutes?
13
14
They gave me
So are you telling me then -- I'm sort of confused
You're aware of four-and-a-half hours; they gave you
I was at -- when they returned the stuff to me at the
FBI, I was there roughly four-and-a-half hours.
15
Correct.
16
And we asked them for a copy of the videotape showing the
17
And they gave you --
full return of all the equipment.
18
I'm not interested in that.
19
Well, that was --
20
I'm just interested in whether or not the video clip that
21
we saw --
22
Yes.
23
Okay.
24
25
It's been provided.

So I will need -- if I have it, tonight, I will
see and look if that's on there.

A
Along with everything else.

(775) 786-5584

91
But no PST files, right?
I wouldn't say that, no.
Well, the eight drives we've opened, there's no PST files
Not on my home computer.
on any of the eight we've been able to open.
Well, there's more than eight, isn't there.
Well, there's 13 that were corrupted.
No, they weren't corrupted.
They were brand-new drives,
sealed in a bag, that had never been opened.
in the picture, or 11.
Those are the 13
I don't remember.
10
Can you explain the 13 I received were corrupted?
11
Well, when you say cor -- I can't -- what do you mean
12
13
14
corrupted?
Q
They were useless.
the data.
15
No.
16
Okay.
17
They couldn't -- you couldn't open
They were damaged.
Now, there's also a photograph shown there.
Where
is that photograph?
18
On my computer.
19
So it's also on that same hard drive that ends in serial
20
number 911?
21
I believe so.
22
You believe so, or you know so?
23
It's there.
24
Okay.
25
That's correct.
Now when you provided your, the 21 hard drives --
let me do this a different way.

(775) 786-5584

92
Uh, did you think before you produced the photograph
to the NBC News, that there were at least five or six minor
children in that photograph?
MS. GAROFALO:
THE COURT:
MR. PEEK:
THE COURT:
8
9
Objection.
Relevance.
Mr. Peek.
I'll move on, Your Honor.
The objection is sustained.
BY MR. PEEK:
Q
Now, we heard your counsel tell us this morning that all
10
of the CDs that were seized by the FBI will be provided to us
11
within the next week.
12
Why haven't they been produced before that?
13
I've given them to my attorneys.
14
When did you give them to your attorneys?
15
By stating that, am I giving up attorney/client
16
privilege?
Waiving it?
17
No.
There's no objection.
18
I don't remember specifically.
19
I don't recall.
20
But --
21
22
23
24
25
It was a few weeks ago.
I mean, I don't know specifically.
Recently.
So only recently then you have provided all of the CDs,
is that correct?
A
No.
I think it was more -- what was the date of the last
hearing?
Q
June 24.

(775) 786-5584

93
Sometime in July.
So sometime in July, you provided all of the CDs to your
counsel to produce, is that correct?
All the ones I found.
Okay.
I don't recall.
Is one of them the Warren's old e-mails?
That was one of them.
Sill that one.
10
I think I was short two.
Which two were you short?
Okay.
Which other one?
11
There was another one.
I don't recall.
12
When you reported to the Court back in June, you said
13
that there were a five you couldn't find.
14
found three more.
15
Yes.
16
Okay.
17
So you, apparently,
What search have you made for these last two,
including the one that's labeled Warren's old e-mails?
18
Very diligently.
19
So you looked every place you possibly could?
20
Well, as you know, there's been a lot of places they've
21
been.
22
I understand it's been a lot of places.
23
I made a pretty good effort to look for them.
24
So that one has been lost along the many moves that you
25
made?

(775) 786-5584

94
Yeah.
Well, I'm -- I haven't found it yet.
Okay.
And why didn't you produce those before July to
be copied as the Court had ordered it to be copied?
MS. GAROFALO:
MR. PEEK:
Objection.
The foundation is, Your Honor, that
he didn't produce them until July.
February that you do it by March 14th.
The first time he did it was in July.
THE WITNESS:
10
There was a court order in
Go ahead.
12
THE WITNESS:
I thought I was just to produce
13
the faces of them originally, copies.
14
BY MR. PEEK:
15
16
Okay.
And you received that information along the way
by, what, reading the court order?
17
MS. GAROFALO:
Objection, to the extent it calls
18
for attorney/client communications.
19
BY MR. PEEK:
20
21
It hasn't happened.
I thought --
THE COURT:
11
Lacks foundation.
Somehow you learned, did you learn that from reading the
court order?
22
I don't -- I don't know.
23
Are you aware that the Court order requires you to
24
25
produce the copies of the CDs?

A
At what date?
I thought it was -- I had originally

(775) 786-5584

95
produced the front covers.
supposed to produce the ones that said eTreppid on them.
somehow, it got to everything.
No.
And then I thought I was only
The Court order was you were to produce those that
bore indicia -- all of the face sheets of all CDs.
that bore indicia of ownership by the Court -- excuse me,
ownership by eTreppid, you were to produce copies.
the February 21st, 2008 order.
9
10
12
MR. PEEK:
THE COURT:
15
MR. PEEK:
16
THE COURT:
17
MR. PEEK:
18
THE CLERK:
19
MR. PEEK:
No.
Is that a question or --
I'm actually -- I'm going to try
It is Exhibit 9.
Thank you.
Court's Exhibit 9.
May I hand it to him?
We don't have another copy of it.
Your Honor, I'll just hand him my
binder with it.
21
23
Right.
get the exhibit, so we can just follow along.
14
22
And that's
the February 21st order?

THE WITNESS:
20
And those
And, Your Honor, I think you made that an exhibit,
11
13
And,
THE COURT:
All right.
BY MR. PEEK:
Q
Let me show you what has been marked and admitted into
24
evidence as exhibit, court Exhibit 9.
25
proceedings, February 21st, 2008.
It's Minutes of

(775) 786-5584

96
May I approach, Your Honor?
2
3
THE COURT:
MR. PEEK:
THE COURT:
Oh.
I apologize.
That's May.
It is, pardon me, it's Exhibit 2.
MR. PEEK:
Court Exhibit 2.
May I approach?
11
Actually, that's the
wrong one.
10
I'm sorry.
THE COURT:
You may.
BY MR. PEEK:
Q
Here are the court's Exhibit 2, Mr. Montgomery.
12
you -- you saw that with the Court.
13
you on that in, on June 10th of this year.
14
Have
And the Court examined
Do you recall that?
15
Yes.
16
And let me turn you -- may I again approach, Your Honor?
17
18
19
20
THE COURT:
You may.
BY MR. PEEK:
Q
Let me turn you, I think it's item 13 on page 6 of 7.
And it's the second paragraph.
21
Would you read that aloud to the Court.
22
The second paragraph?
23
Yes.
24
Request number six and seven also pertain to the computer
25
disks -- in quote CDs -- the FBI seized.
And the Montgomery

(775) 786-5584

97
parties shall, one, make a photocopy of the face of the CD
seized by the FBI; and
Two, produce a copy of every CD the FBI seized which
bears an eTreppid, or is understood to be eTreppid-related
property, and/or work routinely performed by eTreppid.
Is that in anyway unclear you were to produce a copy --
No.
-- of the CD?
Right.
10
And you knew that, even when the Court read it to you on
11
12
June 10th, didn't you?

A
The problem is I didn't know which CD it was, because I
13
didn't have -- they were commingled.
14
the photographs to show me the ones that were taken, so I
15
could match them up to the ones that I had.
16
didn't get until late.
17
Okay.
Okay.
And I needed a copy of
And, that, I
So you -- there was a lack of an
18
understanding on your part.
First you said only the face
19
sheets were to be produced.
Now when you read the Order,
20
you understand that the copies were supposed to be produced.
21
Did you know that in February of 2008, that the
22
copies were to be produced, copies of the CDs?
23
when that order was issued that --
Did you know
24
I don't remember right then if I did or not.
25
When did you become aware that you were to --

(775) 786-5584

98
You've asked me this.
-- make copies of the CDs?
Sometime in March.
Okay.
And then you were unable to produce them, those
copies, because your testimony is that you didn't know what
the FBI seized.
That's correct.
Okay.
10
11
12
13
14
And then you got photographs of those, I think, in
the June hearing, correct?

A
I don't know if it was the June hearing, or it was right
before it actually.
Q
Okay.
Right before that.
And then it took you another
month, plus or minus, to locate them and copy them?
15
I don't think -- I didn't copy them anyway.
16
Okay.
17
I don't think it took a month, and I, I -- they were
18
produced pretty quick.
19
they've taken now, if you're telling me, I don't know that
20
answer.
21
Okay.
I can't tell you the exact date.
But, in any event, your lawyer has said he's going
22
to produce them within a certain period of time.
23
week, by next Friday.
24
July?
25
Why
I think next
But, you didn't give them to him until
No -- you keep saying that.
I gave them to -- as soon as

(775) 786-5584

99
I got the photographs and I could identify which CDs went with
which photographs, I produced them shortly thereafter.
And the reason why you didn't produce them previously
is you had commingled them and lost the integrity of the FBI
raided material, is that correct?
I don't know what, quote, integrity --
Well, you lost the discrete description because you said
you put them in boxes and then commingled them later on.
didn't preserve them, did you?
10
They -- at some point they got commingled, yes.
11
Okay.
12
You
Now, how did -- let me back up a minute, if I may.

When was the FBI seized material returned to you?
13
In May of, I believe, May of '07.
14
May of '07?
15
That might be sooner.
16
Okay.
17
I think so.
18
And that's what you got back, your hard drive that had
19
May of '07?
the video on it, is that correct?
20
Yes.
21
Okay.
22
I don't --
The Lisa Myer interview was in December of '06,
was it not?
23
Yes.
24
And you had the video then, did you not?
25
Well, obviously, I did, but --

(775) 786-5584

100
Obviously, you did.
2
3
Yes.
Where did you have it?

A
I have no idea.
I may have had a copy of that drive of
my own computer, or backup of my own computer, I don't know,
at the time.
6
7
Have you produced that backup because you were required
to produce all copies?
All copies of what?
Of anything provided to the media.
10
I don't -- I don't know if I -- I'm sorry again.
11
12
13
Anything?
Ask me
the question again.

Q
Have you provided -- you said that you must have had a
backup some place, correct?
14
Well --
15
Because --
16
I --
17
Here's what you told us earlier --
18
Yeah.
19
You told us that that video was on your home computer
20
on your hard drive; that that hard drive was removed by the
21
FBI and placed into Segregated Way?
22
Right.
23
And that that was, that was where that video came from.
24
25
That's what you said, and has now been produced to us -A
I --

(775) 786-5584

101
1
2
Now you're telling us you had a copy of that video before
that?
I don't know if that was the original or the copy.
I don't even know if you had one on your home computer,
Mr. Montgomery, because I don't know what to believe.
MR. SUNSHINE:
MR. PEEK:
Your Honor, who's going to make the
objections?
shouldn't be both of them.
Mr. Sunshine or Mrs. Garofalo?
10
THE COURT:
11
MR. PEEK:
12
THE COURT:
13
16
17
18
19
20
All right.
Because it
Please let us move on.
I will move on, Your Honor.

And one of you be in charge of your
objections for the Montgomery parties, please.
14
15
Your Honor, objection.
Go ahead.
BY MR. PEEK:
Q
So have you produced this copy, or the video that you
provided to NBC News; that specific discrete video?

A
Well, if you have the drive on it that was taken from the
FBI -Q
No.
I'm talking about the one that was provided to the
21
FBI, that was on -- that you said that was some place else,
22
because you had it and gave it to Lisa Myers in November
23
of '06.
24
that specific discrete video?
25
I want to know where that is, and have you produced
I, I don't know if that video was given to her at that

(775) 786-5584

102
time she was there, or they did not look for it sometime
thereafter.
that story came out, that it was taken off of that drive.
4
5
And that after being -- I don't remember when
So then are you telling us that you provided it to
Lisa Myers at a date later than November of '06?
I don't recall.
You don't remember.
8
9
10
To be honest with you, I don't know.

Okay.
Now, the CDs that are the subject matter of the

motion, and that you're now going to produce, where did you
get those?
11
What do you mean?
12
Where did you get them?
13
Where did you get the data on
those CDs?
14
I'm missing the point.
15
On the CDs, there's electronic data, is there not?
16
Yes.
17
Where did that come from?
18
Any variety of sources.
19
Okay.
20
My laptop, home computers.
21
How did you get it before it went on your laptop or on
22
What are the variety of sources, sir?
your home computer?
23
The video?
24
No, no, no.
25
I --
I'm talking about all the CDs, the hundred
and some odd CDs that were seized, 170, plus or minus CDs,

(775) 786-5584

103
that were seized by the FBI.
Where did you get those?
Are you talking the physical media, or are you talking --
I'm talking about the physical, the electronic --
Well, can --
-- the electronic media that's on the CDs.
6
7
bought the CD, not the store.

A
Quite a number of those CDs were dated prior to '97, so I
presume work that I had done in the past.
do about eTreppid.
10
11
12
13
14
15
Not where you
It had nothing to
I'm talking about the ones that have to do with eTreppid.
Where did you get those?

A
It may have been just something that I had and I burnt a
CD of it at home or anywhere.
Q
So, I mean, it's something you had at the offices of
eTreppid?
16
They surely could burn CDs there.
17
And you burned a CD there, is that correct?
18
I have burned CDs there.
19
Okay.
Yes.
Remember your testimony at the preliminary
20
injunction hearing where you said you took no electronic
21
media from eTreppid.
22
Do you remember that testimony?
23
Yes.
24
So that's false testimony?
25
No.

(775) 786-5584

104
Okay.
Well --
So, then you took the CDs.
4
5
6
7
You took that data and put it
on a CD, and took it out of the premises, did you not?

A
Everything I took out of there, Mr. Trepp knew I was
taking out.
Q
So are you saying, then, that you downloaded or you,
excuse me, copied data from eTreppid, put it on a machine,
burned it on to a CD, and then asked permission to take it?
10
No.
11
Well, how did you get -- tell us the form in which you
12
I don't recall that specifically like that.
received permission to take eTreppid's property?
13
I can't tell you.
I thought I was eTreppid.
14
Pardon me?
15
I mean, I own stock in the company.
16
So you took it because -- I'm just talking about the
I thought --
17
testimony you gave us when you said you took no electronic
18
data from --
19
The way that question was asked to me, I thought that
20
was meaning taking it illegally, or without somebody's
21
permission.
22
The question was have you taken anything?
23
I --
24
You said no.
25
No.
So, that was false testimony.
I don't know.

(775) 786-5584

105
Okay.
2
3
Now, you also testified that the FBI seized

material may or may not contain State Secret Privilege.
Do you recall that testimony.
The FBI --
The FBI seized material may or may not contain State
Secrets Privilege?
Yes.
And that's been one of the reasons why you haven't
10
produced it, isn't that correct?
11
Are you talking about the 21 hard drives?
12
21 hard drives, the CDs, everything that the FBI seized.
13
From time to time, you claimed that it contains FBI -- excuse
14
me, State Secret Privilege.
15
a loss on how to get it produced quickly.
16
17
18
And you have, therefore, been at
That's not necessarily true.
I mean, I don't know where
you're going, so -Q
I'm just going by your testimony.
You said that one of
19
the reasons why you hadn't produced a lot of the documents
20
that were required to be produced is because you had a concern
21
that the State Secret Privilege may be implicated on some of
22
that electronic media you had.
23
24
25
Do you remember that testimony from June 10th and

June 24th?
A
Yes.
Yes.

(775) 786-5584

106
Okay.
Yes.
Okay.
That was your position then, was it not?
You've taken a contrary position before, have you
not, that there's no State Secret Privilege on any of the
seized material?
Seized material?
Yes.
I think, originally, that was the position.
And that was the position you took in a sworn
10
declaration, was it not?
11
Yes.
12
Okay.
I remember signing something.

Let's look at that sworn declaration, which is --
13
if I may have just a minute to find it.
14
moment.
15
If I may have the Court's indulgence.
16
17
Hang on just a
THE COURT:
You may.
BY MR. PEEK:
18
Would you take a look at Exhibit 19.
19
In this binder I have?
20
THE COURT:
21
MR. PEEK:
22
25
No.
I believe it would be in another
binder.
23
24
Is it --
THE COURT:
Is it the Court's exhibit or your
exhibit?
MR. PEEK:
No.
It's not a court exhibit.

(775) 786-5584

107
THE COURT:
THE WITNESS:
MR. PEEK:
find it.
BY MR. PEEK:
6
7
8
Okay.
Double-sided, Your Honor.
document, paragraph six.

A
Yes.
THE COURT:
I'm sorry, sir.
MR. PEEK:
12
THE COURT:
Thank you.
13
MR. PEEK:
In Volume V.
14
THE COURT:
Thank you.
16
17
Could you tell me
what exhibit.
11
15
I couldn't
Would you take a look, I think it's page 5 of that
9
10
Black binder.
It's Exhibit 19, Your Honor.
BY MR. PEEK:
Q
Now, you submitted this declaration in this proceeding,
did you not, as docket number 228?
18
I presume my attorneys did.
19
Well, but you actually -- want to turn to the last page
20
and did you sign it?
21
I'm sure I did.
Yes.
22
And did you sign it?
23
Well, mine has two pages.
24
I'm just looking at the last page?
25
One is signed and one is not signed.
Mine has two --

(775) 786-5584

108
1
2
3
4
5
6
Well, I'm looking at the last page.
last page to it, sir, where your signature appeared?

A
The last page, the one that's the January 12th, 2004
letter from the government?

Q
No.
The second to last page with your signature on it.
I'm just looking for the one with your signature.
THE COURT:
MR. PEEK:
12
13
Page 22.
Page 22 and 23.
Is that your signature?
10
11
Does yours have a
THE WITNESS:
Yes.
BY MR. PEEK:
Q
Did you declare under penalty of perjury that the
statements you made are true and correct?
14
Yes.
15
And then read what you said in paragraph six of that
16
declaration under penalty of perjury.
17
Do you want me to read it, or read it out loud?
18
I want you to read it out loud, that first sentence.
19
"The government has now held my computers in storage
20
and media for over six months, knowing I do not have any
21
possession of any classified information, and knowing that all
22
Source Code used in special government contracts worked on by
23
me at eTreppid are owned by me."
24
25
And when you gave that declaration, you were stating,
were you not, that you did not have possession of any

(775) 786-5584

109
classified information in the FBI seized material?
That's correct.
And then in this court, you know, on June 10th and
June 24th, you told me and the Court, from time to time, the
reason you were having difficulty producing is because you
were concerned about State Secrets Privilege information that
was on the FBI seized material, correct?
I don't believe I said the FBI.
Well, you were talking about the seized material.
10
When?
11
June 10th and June 24th.
12
No.
13
Okay.
14
When was that?
Well, part of the seized material were the CDs,
were they not?
15
Yes.
16
And you told the Court, at least that the reason why you
17
were having trouble providing the CDs was, in part, that it
18
may have State Secret Privilege on it, correct?
19
Yes.
20
And that's different than what you told the Court under
21
penalty of perjury when you filed this declaration on 8-3,
22
207, wasn't it?
23
24
25
Well, considering I didn't have the CDs that they took
from me and -Q
Well, you gave this declaration under penalty of perjury,

(775) 786-5584

110
knowing what the CDs that were seized were, did you not?
No.
Oh, you didn't know what the FBI seized?
No.
You did not?
You didn't have the inventory?
No.
Okay.
Okay.
So when you said this under penalty of perjury,
that was false?
10
No.
Just what I believed at the time to be accurate.
11
And you changed that position at a later date, correct?
12
No.
13
Well, are you -- I mean, which is it?
Are you claiming
14
that there is or is not State Secret Privilege on the FBI
15
seized material?
16
I don't know if classified information and the State
17
Secrets Privilege, and the protective order are all the same
18
thing.
19
So you make a distinction amongst those categories.
20
Classified, did you understand classified to be
21
information that to be covered by State Secret Privilege?
22
I don't -- what's the question.
23
Did you know that classified would include information
24
25
that would be covered by a States Secrets Privilege?

A
I don't know if it would or wouldn't.

(775) 786-5584

111
Okay.
Do you think there's something other than a
category or classified information that would be covered by
the State Secrets Privilege?
I don't understand.
Well, let me ask a different way.
6
7
Is it your position that when you gave this

declaration, that you didn't have any classified information?
That's correct.
Okay.
10
And you actually gave this declaration in the
Buckthorne proceedings, did you not?
11
What do you mean the Buckthorne --
12
The Buckthorne search and seizure proceedings.
13
Oh, yes.
14
This declaration was submitted in the Buckthorne search
15
and seizure, was it not?
16
I don't know which document.
17
Well, the original signature on that is in October
18
19
20
21
I'll believe you, yes.
of '06, is it not?
A
So that was -- okay.
I know which one it is.
Yes.
remember now.
Q
Okay.
And you gave this declaration to this court to
22
persuade this court that you did not have any classified
23
information?
24
No.
25
Correct?

(775) 786-5584

112
No.
Well, it wasn't one of the issues in that Buckthorne
proceeding, an issue whether you did or did not have
classified information.
I believe there were nine hard -- well, I, I believe
there -- that there was an allegation that I had taken nine
hard drives from Nellis Air Force Base with classified
information on them.
Nellis Air Force Base.
10
11
And I never had nine hard drives from

And my understanding was some time
later, eTreppid found the nine hard drives.

Q
No.
I'm just talking here that you said that the seized
12
material that they had, the computers and storage media for
13
over six months, you say they took it knowing you did not have
14
possession of classified information, correct?
15
That's correct.
16
And now you've taken the position that there is
17
classified information on that seized material, correct?
18
No.
I believe it's States Secrets Privilege.
19
Okay.
20
I don't know the distinction between the two.
21
Okay.
Not classified information.
I want to ask another few questions.
I believe
22
that there is a request to you that requires you to produce
23
all efforts to market, sell your -- or sell the Source Code
24
for the data compression, anomaly detection and the like.
25
Right.

(775) 786-5584

113
1
2
3
4
5
6
And I think you said no such documents exist, is that
correct?
A
That's correct.
Other than the documents that I know
that were produced.

Q
Okay.
Well, that would be on the 21 hard drives and on
the one terabyte and the 500 gigabyte hard drive?
What?
Are those the documents -- those are the only documents
you've produced.
10
I -- is that a question.
11
Yeah.
12
Is that where it's contained, all that data is on
that one, is that right?
13
Possibly.
14
Okay.
15
Yes.
And I believe that you have said that that is
contained on those hard drives, correct?
16
I don't remember if I did or not.
17
Okay.
Now did you have any communications, after
18
February of 2006, with any customer or prospective customers
19
regarding the data compression, anomaly detection, object
20
tracking, and pattern recognition?
21
I might have.
22
Have you produced that?
23
Well, you have my hard drive from my home that they
24
25
I'm not certain.
seized.
Q
Well, I'm talking about after 2006, sir.

(775) 786-5584

114
Oh, after.
After February 2006 is what I'm asking for, because the
order requiring you to produce it was from the date in '06,
February of '06, all the way to the present.
5
6
Have you produced any of that?

A
Right.
I believe --
MS. GAROFALO:
MR. PEEK:
Objection.
Lacks foundation.
I don't know what the foundation is.
I'm just asking has he produced it from that date to the
10
present, as he was required to do under request for production
11
16, under Request For Production in the first one, and request
12
for production 27.
13
I can go over that, if I have to, Your Honor.
14
MS. GAROFALO:
Your Honor, he's assuming
15
there are writings to be produced, rather than just oral
16
communications.
That fact hasn't been established.
17
THE COURT:
18
MR. PEEK:
19
All right.
I said have you produced any
documents, Your Honor.
20
THE WITNESS:
I believe the documents, the ones
21
I know that were produced, were the Opspring documents.
22
BY MR. PEEK:
23
24
25
Okay.
Other than the Opspring documents, have you
produced any others?

A
No.
I don't believe there are.

(775) 786-5584

115
There are no others that exist?
No.
You wouldn't have any?
You mean, other attempts to what?
To market.
I don't have any.
Okay.
No.
None?
10
No.
11
None whatsoever?
12
None.
13
Okay.
14
No.
15
Doesn't ring a bell with you.
16
No.
You don't have any on Dennis@ncoder.net?
Now do you know a Steve Visconte?

Doesn't ring a bell.
You are Dennis@ncoder.com, are you not?
17
Am I -- I have no e-mail address.
18
Or dot net.
19
Yes.
20
You are Dennis@ncoder.net, are you not?
21
Yes.
22
23
24
25
Excuse me.
MR. PEEK:
Could I have this marked as, I think,
45.
(Whereupon, exhibit 45 -- a document, was marked for
identification only.)

(775) 786-5584

116
1
2
3
BY MR. PEEK:
Q
Take a moment, if you would, and look at this e-mail
string, which actually starts with me at the top.
(Witness complies.) Yes.
It came to me from Mr. Trepp.
And it came to Mr. Trepp
from Mr. Visconti.
And what I actually want you to look at is
Mr. Chris Shockey, the Mr. Chris Shockey e-mail.
Okay.
Do you see that?
10
I see what you're describing, yes.
11
Okay.
12
An employee at Blixware.
13
And then do you see the CC there?
14
Yes.
15
And do you see that it lists that Dennis@ncoder.net is
16
Who is Mr. Shockey?
copied on this e-mail?
17
Yes.
18
So do you have this e-mail?
19
No.
20
Why not?
21
I may have seen it, and that was it, it was gone.
22
Okay.
23
it?
24
I mean --
25
Did you delete it, sir?
So, this was in August of 2007.

(775) 786-5584
So you deleted

117
I don't know if I did or not.
Well, did you make a search for it?
On, on, uh -- on my ncoder.net, it -- yes.
4
5
6
But, I don't
ever remember seeing this.

Q
Okay.
Does this e-mail between Mr. Shockey and
Greg
King at King Charter refer to video compression?
Yes.
And that's data compression, is it not?
Yes.
10
Where is this e-mail?
11
I don't have it.
12
You don't have it, is that what you're saying?
13
That's correct.
14
Did you make a search for it?
15
Yes.
16
Where?
17
On Dennis.net there isn't one.
18
There isn't one?
19
No.
20
So are you telling then, this Court, that when you looked
21
for e-mails that may have come to you at Dennis dot -- excuse
22
me, Dennis@ncoder.net, that you could find no such e-mails?
23
That's correct.
24
And why not?
25
I mean, it doesn't keep them permanently.

(775) 786-5584
It only keeps

118
them for so many days.
Is ncoder.net an internet provider --
No.
-- like AOL?
What is it?
No, no, it's just -- uh --
It's you, isn't it?
Yes, it's me.
9
10
11
12
13
14
15
service on a server somewhere.
18
I don't hold them or contain
them.
Q
So are you telling us that your e-mail service, where you
house your e-mail server, didn't preserve these?

A
I don't have an e-mail server.
I don't house an e-mail
server.
Q
I apologize.
16
17
But, always I did was take an e-mail
I misunderstood your answer.
What is ncoder.net?
A
It's just an e-mail address on a virtual server somewhere
on the web.
19
Is it like G-mail or AOL?
20
Those are specific e-mail services for a lot of people.
21
This is an e-mail service that is set up for one person.
22
Okay.
23
I did.
24
Okay.
25
So who set this up for you?
So there's someplace where, at least, the media
goes, correct?

(775) 786-5584

119
Yes.
And this electronic media, are you telling us is wiped as
soon as it's read?
Yeah.
It's only kept for a day; 24 hours.
Okay.
So all of the e-mails that would have been
responsive to request number 16 in the first one, and request
number 27 in the second set, that came to you at ncoder.net,
are all lost?
Wiped out?
Deleted?
I didn't get that many to that.
10
Well, you -- certainly I have seen some in other --
11
Right.
12
-- filings in this Court to Dennis@ncoder.net?
13
I don't even know the person that he's referring to in
14
15
I understand.
this.
Q
Well, why is it, you suppose, that Chris Shockey would
16
e-mail you at Dennis@ncoder.net, as opposed to
17
Dennis@blixware, Dennis@opspring, or some place else?
18
I don't know.
19
Well --
20
Somebody gets an old e-mail address and just keeps it.
21
So you think that Chris just had an old e-mail address
22
for you and he just used that one, as opposed to that was
23
the one that you provided to the employees at Blixware, and
24
the employees at Opspring?
25
I don't think that's the case.

(775) 786-5584

120
1
2
And what about the ones you received from Mr. Flynn at
Dennis@ncoder.net?
Yes.
Well, you received those there.
What about them?

Is that the only address
he had for you?
I don't know if that is --
Well, what other e-mail addresses did you have other than
Dennis@ncoder.net, sir?
When?
10
At anytime.
11
12
13
Let's say, in the year 2006, what were your
e-mail addresses?
A
I don't think I had that -- if it was in 2006, it was
late.
14
When did you get Dennis@ncoder.net?
15
I think it was mid 2006 or later.
16
Okay.
17
Ncoder@earthlink.net.
18
Okay.
19
20
21
22
23
What was your e-mail address before that?
And then what other e-mail addresses have you had
after you obtained ncoder.net?

A
I think I had Dennis@opspring.com at some, one point.
don't know if I ever used it.

Q
When did you have that -- oh, you don't think you ever
used it?
24
I mean it wasn't used that often.
25
Pardon?

(775) 786-5584

121
It wasn't used that often.
It wasn't used that often.
3
4
Okay.
So then what e-mail were you using in the
'06, '07 period of time?
I think it was ncoder@earthlink.net.
So for how long a period of time, in '06, were you using
ncoder@earthlink.net?
I'd had that e-mail address for quite a number of years.
For what period of time did you continue to use it after
10
11
2006?
A
You said sometime in mid '06, you'd gotten ncoder.net?

If somebody had that old e-mail -- I never terminated the
12
address.
So if somebody had the old address, e-mail would
13
have went to it.
14
So when did you set up ncoder.net?
15
I think it was sometime in '06.
16
17
18
I would say -- I don't
know.
Q
Was that your primary e-mail address for the outside
world then?
19
No.
20
What was your primary e-mail address for the outside
21
world after you setup Dennis@ncoder.net?
22
I had -- I don't think so.
23
What was your primary e-mail address after you setup
24
25
Dennis@ncoder.net in mid 2006, sir?

A
Probably Dennis@opspring, I think.

(775) 786-5584

122
You said you didn't use that very often.
I didn't get that many e-mails.
Okay.
I'm an employee.
You're Chief Scientist at Opspring --
Yes.
-- are you not?
And you are Chief Scientist at Opspring?

Yes.
And those e-mails at Opspring are
under your care, custody, and control, are they not, as
Chief Scientist?
10
No.
11
They're not?
12
Yes.
13
Okay.
14
I didn't get that many.
15
Well, whatever ones you got, you could have made copies,
16
Are they available to you?
And you could have made copies of those?
could you not?
17
In '06?
18
'06, '07, '08.
All the way from the time that the
19
request was asking you to produce them, which is from the,
20
you know, I believe February of '06, all the way to present
21
time.
22
I mean I may have printed them out.
I --
23
Well, where -- I haven't seen them.
Where are they?
24
I don't know.
25
You don't know.

(775) 786-5584

123
1
2
3
What efforts have you made to search for them, sir?

A
Up until -- I was trying to think of the date.
through my storage.
At Opspring?
I don't think it has one anymore.
I looked
I mean, I looked when
I was up there.
Okay.
When did you do that?
January and February of '07.
Okay.
Now, in August of 2006, you were sent a request to
10
produce, which is number 16, which is -- and it's a continuing
11
request:
12
products, and/or research and development efforts, including,
13
not limited to all marketing documents, business plans,
14
PowerPoint presentations, white papers correspondence, and/or
15
notes of customers or potential customers."
"All documents related to eTreppid's technology,
16
When was this?
17
In August of 2006, sir.
18
When did you --
19
Wasn't there a stay on?
20
There may have been a stay, but it didn't give you the
21
right to delete e-mails?
22
Well, no.
23
You are under an obligation to preserve.
24
25
There may have been a stay.
I understand that.
But, did you preserve any of your e-mails that would have

(775) 786-5584

124
been responsive to that?
Probably.
And where are they then?
Mr. Flynn probably has them.
Okay.
6
7
Yes.
So, Mr. Flynn has them.

Now, in November of '07, you had a similar type of
request, request number 27.
Okay.
"Please produce any and all documents, including but not
10
limited to correspondence, e-mails, calendar notes, journal
11
entries, PowerPoint presentations, marketing materials, or
12
phone messages memorializing any communication between you,
13
or anyone acting on your behalf, or any customer or potential
14
or prospective customer of Opspring or Azmeth."
15
16
17
18
19
Where are those e-mails?

A
I wasn't involved in any of that, marketing.
you just read.

Q
Now, Mr. Shockey seems so think you're involved because
he copied you on this?
20
Yeah.
21
You don't know --
22
He may have just done that.
MS. GAROFALO:
23
speculation.
24
BY MR. PEEK:
25
Whatever
Objection.
I have no idea why.
Calls for
Well, Mr. Shockey copied you on this, did he not?

(775) 786-5584

125
Obviously.
So Mr. Shockey must have had some reason to do so, would
he not?
4
5
MS. GAROFALO:
you?
10
11
Well, do you know why Mr. Shockey would have included
I don't even remember it, so -- you're the one who just
provided this to me, so -Q
Well, I'm just trying to find out where all these e-mails
are, sir; whether you got the one which we have here.
12
Right.
13
Or, you got others.
14
Same objection.
BY MR. PEEK:
That's what that piece of paper says.
Where are they, because you've
produced none to date.
15
THE COURT:
16
Go ahead.
17
THE WITNESS:
I'm not certain.
I don't want to
18
say something to give up my privilege, my -- I'm not certain
19
I haven't given some to my attorney.
20
But, I'm not --
21
BY MR. PEEK:
I'm not saying I have.
22
So it's your attorney's fault then?
23
No.
24
25
I'm not blaming my attorney.
I'm talking about
Debra.
Q
Oh, so now we're he blaming Debra?

(775) 786-5584

126
No.
I see.
I --
I just want to know where they are.
5
6
7
8
9
10
11
Okay.
That's all I want to
know.
A
I'm not certain, but I will make a diligent effort to
find out.
Q
Okay, but you've been ordered to do so since February
of this year.
What efforts have you made since February of
this year to do that?

A
You can give me a hundred orders.
But if it takes a 20
12
hours a day to do them, and you do it every single day, you
13
can't get them all done.
14
15
16
17
18
19
20
21
22
So you can just ignore the Court's order because of your
own personal -A
Considering I can't show it to my attorneys.
discuss it my attorneys.
Q
Wait a minute.
stuff.
A
I can't
I can't --
That's the States Secrets Privilege
This is just correspondence related to marketing.
But all that other work I've had to do related to the
other stuff.
Q
I'm just talking about the documents that are not covered
23
by the States Secrets Privilege that are covered by Request
24
For Production number 16, in the first request, and by number
25
27 in the second request?
It has nothing to do with the State

(775) 786-5584

127
1
2
3
4
5
Secrets Privilege, does it?

A
But I don't have anything to do with marketing or the
things that you described.

Q
I understand, sir, but somebody thought you had something
to do with the --
But that's one e-mail.
-- the sale of the products of data compression that
8
9
10
somebody had, whether it be Blixware or Opspring?

A
I can't speak for them.
I've never seen the e-mail so --
you know, this is the first time I've seen it.
11
Well, that's not the first time you've seen it, is it?
12
Okay.
13
No.
have -- maybe.
Because I got this, doesn't mean I -- I could

I don't know.
I've not seen this one e-mail.
14
And there are probably more, aren't there?
15
Have I got more than one e-mail in my life?
16
Okay.
17
Yes.
And there are probably more that would be
responsive to request number 16.
18
I doubt it.
19
And -- sorry.
20
Well --
21
You doubt it?
22
-- 16 is the one that's related to the marketing?
23
Right.
24
No.
25
You think you only got one and this is the one?

(775) 786-5584

128
1
2
I wasn't -- I'm not -- wasn't and am not involved in that
part of it.
Who is?
Nick Rhodes would be.
Okay.
Yeah.
Nicholas Rhodes?
Yep.
Okay.
10
I believe so.
11
Well, is he or isn't he?
12
I honestly, for certain, I don't know.
13
14
15
16
Is he on this?
I don't know.
I --
18
MR. PEEK:
19
THE COURT:
20
MR. PEEK:
Honor.
25
Objection.
Lacks foundation.
Is somebody names Nicholas -No.
She's interposed an objection.
I apologize.
I'll move on, Your
I'll withdraw that.
22
24
But -- I don't know.
then?
MS. GAROFALO:
23
He might be an
So then Nicholas Rhodes would have all of these documents
17
21
He's at Yahoo.com.
And is he an employee of Opspring?
independent contractor.
Q
He is.
THE COURT:
All right.
BY MR. PEEK:
Q
Is Nicholas Rhodes somebody with whom you have contact
from time to time?

(775) 786-5584

129
Yes.
Did you ask him whether or not he had any such e-mails?
I believe I did.
And what did he tell you?
I thought they did.
You thought that they did.
Yeah.
And did you say then, well, produce them to me?
Well, I thought -- I said pro -- they have to be produced
10
11
12
to the attorney.
Q
Not necessarily to me.
Well, do you know whether they were produced to the
attorney?
13
I don't know.
14
Okay.
So is it your testimony then -- just so we
15
can sort of close this -- there's only one e-mail, if any,
16
that may cover exhibits -- excuse me, request 16, of
17
correspondence, notes of meetings, PowerPoint presentations,
18
business plans, and marketing documents?
19
That are in my possession.
20
In your possession.
21
We went through who the "you" is.
Want me to go back to that; who the "you" is?
22
But I wasn't involved in any of the marketing plans.
23
That's not my question.
24
only one that exists?
25
involved in it.
My question is, is this the
I understand you say you weren't
But, for some reason, Mr. Shockey thought

(775) 786-5584

130
it was important to copy you on the e-mail.
had some belief that you were involved in the sale of data
compression?
MS. GAROFALO:
THE WITNESS:
there are any others.
BY MR. PEEK:
Objection.
What diligent efforts have you made?
I went through my storage.
10
Okay.
That was number one.
You went through your storage.
No.
13
Does it have stuff after 2006?
14
Yes.
15
Okay.
17
18
19
20
Your storage only
includes information pre-2006, does it not?
12
16
Asked and answered.
I'll diligently look to see if
11
So, he must have
I mean --
So when you went to that storage, you looked for
all these e-mails?

A
Yes.
But, like I said, I believe my prior attorney may
have some of this.

Q
Not these -- not this (indicating).
of '07.
This was August
Mr. Flynn was gone by then, wasn't he?
21
I'm not sure he's ever been gone.
22
I understand the flippant sarcastic remark but, at this
23
time, in August of '07, would Mr. Flynn have had this e-mail,
24
sir?
25
Yes or no.
I don't know.
I doubt it.
I -- no.

(775) 786-5584

131
1
2
And were you also required to produce that e-mail in
native format as well?
Have you -- can you do that?
Which e-mail?
The e-mail that's Exhibit 45.
The one you just handed me?
Yeah.
No.
And that's because it's been destroyed, correct?
You have a printout of this.
10
That's because it's been destroyed?
11
No, no.
12
Well, where is it?
13
I don't know.
14
Where is the e-mail in native format, sir?
15
I don't know.
16
So when you produce it, you will produce it in native
17
Can you do that?
Yes or no.
format?
18
I'll produce whatever I have in any format.
19
Now, one of the other requests that you were asked to
20
give was a request regarding any and all payments made by
21
either Blixseth, Opspring, Azmeth, Michael Sandoval, or
22
Atigeo.
23
correct?
24
25
And I think your response was you gave an affidavit,
Well, you have all my bank statements, and I only have
one bank account.
So, you have all the --

(775) 786-5584

132
So it's in all the bank statements then?
I only --
It's in -- that's the one bank account where?
The Wells Fargo account.
So that would have all of the evidence of payments?
Yes.
Why didn't you produce that to us as opposed to your
affidavit?
Because the FBI took them.
10
The FBI took your papers, payments, evidence of payments
11
by Opspring, Azmeth, Atigeo, or Sandoval?
12
No.
13
I know it's not correct.
14
You're right.
15
16
17
That can't be correct.
You're right.
Uh, I was thinking that was before the time that -Q
Well, you gave an affidavit.
I wanted to see the
payments.
18
Yeah.
19
Where are those?
20
Well, the -- I don't have a copy of the check that I got,
21
so wouldn't Opspring have that copy?
22
I'm asking what you have, sir.
23
The bank statements.
24
You would have a bank deposit.
25
So, you don't have --
You would have a bank
statement.

(775) 786-5584

133
1
2
3
Where are those?

A
I don't know if I would have a bank deposit slip because
it may have been wired in.
Okay.
In which case, the --
Did you get a copy of a -- I mean, when I -- all my
checks go in in electronic deposit.
check.
No.
10
You don't get copies.
11
But, I get a copy of the
I don't get copies of checks.
bank statement.
Okay.
But I get then, also, a
And it shows --
12
Yes.
13
-- and that shows I got a debit to my account, I think is
14
the right word, or a deposit.
15
16
Where are those?

A
I thought I ordered my bank statements at the time this
17
was asked of me.
18
well, they just got them from the bank directly.
19
Okay.
And then I don't know if somebody said,
Now are there any contracts, to your knowledge,
20
that Opspring has for the sale of the -- sale of any of the
21
video compression, pattern recognition, anomaly detection?
22
No.
23
Any proposals?
24
I don't know.
25
You're unaware of that.

(775) 786-5584

134
I'm not involved in that.
You're not involved in that.
Who is is that?
That's Nick Rhodes?
Yes.
Is he the only person?
I would say he's the main person.
Okay.
8
9
THE WITNESS:
Yes.
I really need to use the restroom.
I don't know how much longer this is going to go today.
10
THE COURT:
Well, it's quarter of 5:00.
I'm not
11
interested in -- we can take a quick two-minute break, but I
12
want to use this time.
13
THE WITNESS:
14
THE COURT:
15
THE WITNESS:
16
THE COURT:
17
MR. PEEK:
18
Your Honor, so --
19
BY MR. PEEK:
20
Okay.
Well, I mean --
And I mean quick, so -Well, I'll wait.

All right.
Okay.
Let's go.
Go ahead.
I think I'm just about done,
Now the e-mails that are the subject matter of the
21
Court's review, and that are the subject matter of the
22
privilege log that you received, where you were copied, what
23
was the e-mail address on those?
24
What does that mean?
I'm not --
25
Well, there was a privilege log that we talked about.

(775) 786-5584

135
You were in court when we talked about that today?
I heard about it.
Well, it's a privilege log of all communications
I don't understand what it is.
between --
Attorneys and so forth?
-- attorneys and others.
Uh-huh.
And on that privilege log, it shows you as being either
authored or copied --
10
Right.
11
-- or addressee.
12
Do you remember that?
13
No.
14
You remember discussing that.
15
But, I mean, I remember you discussing that.
I just want to know what the e-mail address is for
16
Montgomery, on those e-mails that are about 200 -- I think the
17
Court said 244 e-mails.
18
Those are all my communications?
19
Well, the ones that are your communications, what's the
20
e-mail address?
21
Either ncoder@earthlink, or Dennis@ncoder.net.
22
Before that privilege log was prepared, did you provide
23
those documents for your counsel, for them to make the
24
privilege log?
25
I believe they have the attorney, ones between me and

(775) 786-5584

136
1
2
them.
Q
I mean, Mike Flynn, I can't speak for.

No -- just a moment.
3
4
I don't think this is a court exhibit, Your Honor.

I will mark my copy.
Is this 46?
THE CLERK:
7
8
identification only.)
THE COURT:
MR. PEEK:
It's the one that was given to
counsel, Your Honor, that I provided to the Court.
13
THE CLERK:
14
MR. PEEK:
15
It's the privilege log that you
received, correct?
11
12
46.
(Whereupon, exhibit 46 -- a document, was marked for
9
10
I know we had one.
Do you need it?

No.
Go ahead.
BY MR. PEEK:
16
Do you see that privilege log?
17
Yes.
18
Do you see that there are communications referenced
19
there, and that you're listed as the recipient --
20
Yes.
21
-- on many of those.
22
them.
I see those.
In fact, I think almost all of
I can represent that to ya.
23
Okay.
24
And what's the address on those e-mails?
25
I believe it -- if they're Mike Flynn, it's either

(775) 786-5584

137
1
2
3
ncoder@earthlink, or Dennis@ncoder.
Q
But if it's not Mike Flynn but, say, just Edra and
others, what would it be?
Dennis@ncoder.
If it was Sandoval, who would it be, what would it be?
I don't communicate with him.
You don't communicate with Mr. Sandoval in any way?
None.
None.
10
And you haven't at all since February of 2006, or
you don't currently?
Which is it?
11
No, no.
12
At all.
13
I mean, I don't remember if that was the date, February
14
15
or March.
Q
Okay.
I -- at all.
It was March.
Mid March.
So from February through March to the present, are
16
you telling this court that you have never ever communicated
17
in any way, shape, or form, in writing, to Mr. Sandoval?
18
Since that split up?
19
Since February of 2006, sir.
20
Oh, you said seven.
21
No.
22
I said -- if I did, I misspoke.
I apologize.
February 2006.
23
Yes, yes, yes, yes.
24
Have you communicated with Mr. Sandoval at all during
25
that period of time?

(775) 786-5584

138
Yes.
Okay.
And then there was some split up after that?
Yeah.
That's the time I thought you were referring to.
Okay.
Now before that split up time -- when was that
Yes.
split up time, by the way?
I thought it was March of '07.
Okay.
I've seen an e-mail of July of '07, in which
you're copied --
No.
10
-- involving you and Mr. Sandoval on that e-mail.
11
So, you're saying you weren't communicating with
12
him?
13
14
15
It was long before that.
Whenever the split up was, which I think was mid March of
'07, I have not communicated.

Q
I might have my dates wrong, so that -- so what was the
16
e-mail address from Mr. Sandoval in that period of time, from
17
February '06 through, uh, whenever that split up was.
18
19
20
Yeah.
Dennis@opspring, of which that mail server resided
at Michael's building.
Q
And were there any e-mails between you and Mr. Sandoval,
21
or ones which you were copied where the e-mail address was
22
Dennis@ncoder.net?
23
It's not -- it's possible.
24
Okay.
25
And those e-mail addresses that are the subject
of -- the e-mail address for Dennis, the subject matter of

(775) 786-5584

139
that privilege log, is that either Dennis@ncoder.net, or
Dennis@opspring.com?
Yes.
So when you say you didn't use it very often, you were
using it for communications with Edra, Michael?
Well, I --
Go ahead?
Dennis@opspring was kept on Michael's servers between
whatever the date, April -- up until March of '07 when they
10
split up.
11
kept it.
12
13
That e-mail server did go with Opspring.
Okay.
Michael
And then so that was the split up in the spring
of '07?
14
Yeah.
15
March of '07?
16
Yes.
17
So was there then no longer an Opspring.com e-mail
18
I think it was March.
Yes.
address for Dennis?
19
There was but, you know, I wasn't using it.
20
You weren't using it?
21
Or Earthlink.
22
Pardon me?
23
Or Earthlink.
24
Which one?
25
Either.
You were using the ncoder.net?

(775) 786-5584

140
Okay.
Dennis@ncoder.
Thank you.
Which one were you giving out to the public?
Now, I think you told the Court that there are --
the only response that you have with respect to documents
that relate to your attempt to sell, license, distribute, or
otherwise exchange for value in any interest in software or
other technology in the fields of data compression, object
tracking, Pattern Recognition, or Anomaly Detection, from
10
January 18th to 2006 to the present, you produced in the form
11
of those proposed agreements, is that that correct?
12
Yes.
13
And are you telling us that there were no e-mails at
14
all?
15
In that time period, which was --
16
Well, from January 18th, 2006 to the present.
17
Well, between January -- I told you that Michael has the
18
e-mails that were kept on his server between the period of,
19
whatever, April of '06.
20
Let's just talk about before that, because I think all
21
those licensing agreements are in April of '06 that you
22
produced.
23
That's what I thought we were talking about.
24
So before -- between January 18th, 2006, and the
25
execution of those agreements that you produced to us that

(775) 786-5584

141
you say are the only documents that you have that are
responsive, are you telling us there were no e-mails?
Well, there were e-mails I had on my home computer
because, obviously, I had no eTreppid account.
Dennis@ncoder.
I had no
That was taken from me by the FBI.
Where were those e-mails?
I believe on that computer.
And why didn't you produced those?
Because I don't want to say I don't have the drive.
10
just -- I just haven't looked.
11
I say that is that, I gave the drives -- I had to give the
12
drives up to have them copied and everything else.
13
you were getting a copy of the whole drive.
14
QuickBooks, the last ten years of checks I've written.
15
got everything.
16
17
Okay.
I mean when I say that, when
And
You got my
You
So are you telling us you produced all those
e-mails there?
18
I think they're on those drives, yes.
19
You think or you know that they are?
20
Sir, that's important to me, because I don't have
21
anything that, in your response to request to produce, that
22
says you produced documents that are responsive to request
23
number 30.
24
Which is what?
I don't --
25
In response to production number one?

(775) 786-5584

142
Just read it.
I'll read it again to you, sir.
Yeah.
"All documents that relate to any attempt, parentheses,
either successfully or unsuccessfully, close parentheses,
by you to sell, license, distribute, or otherwise exchange
for value, any interest in software or other technology in
the fields of data compression, object tracking, pattern
recognition, from January 18, 2006 to the present."
10
First is I don't think there are any.
11
Okay.
12
He second is the FBI took a lot of documents from my
13
home.
I mean, they -- and there were, obviously, a lot of
14
shredded documents.
15
So you're saying the FBI shredded documents?
16
I believe they have.
17
Okay.
18
Right.
19
Okay.
Yes.
And we'll hear about that on September 8th.
But whatever -- whether they shredded or not, they
20
gave you back everything in at least March of 2007, did they
21
not?
22
Yes.
23
And whatever they gave you back --
24
Right.
25
-- we'll hear that motion later.
Yes.

(775) 786-5584

143
Have you produced those e-mails?
Which e-mails.
That we've --
Well, I know, but I --
That relate for request -- do you want me to read it
6
7
8
9
10
11
12
13
14
again?
A
I believe they're on the same computer that has the --
have I personally?
Q
Okay.
No.
So you have not produced documents in response to
request number 30, is that correct?

A
Well, I produced the drive that would have contained
them.
Q
Okay.
So then when I find this 911, then I'll find all
of those e-mails?
15
I believe so.
16
And what if I don't?
17
I guess I'll be on the stand again.
18
Okay.
19
Uh, maybe not.

But, I just want to make sure that you then went to
20
that computer, searched that computer, and said that I have
21
documents that are responsive to request number 30.
22
I don't have anything that says that.
23
the hard drives that were produced to me, the 21, say they're
24
responsive to the request number 16, which relates to white
25
papers --
Because
All I have is that

(775) 786-5584

144
What I --
-- and the like.
I -- when you say 21, that is the non-FBI hard drives.
Correct.
That's where you said you gave them.
where 911 is.
I thought there was more than 21.
Okay.
And so then you're talking about the ones that
were produced by the FBI seized material.
subset?
That's a different
10
Yeah.
11
That's the one that has 911, nine one one?
12
Yeah.
13
Well, I don't have 28.
14
That's
That's --
I think there's 28 of those.
been provided 28.
15
I haven't received -- I haven't
I was told there was 30.
I received 17.
Where are those other 11 or 13?
16
Well --
17
Where are they?
18
Okay --
19
I don't even know that I have the one that ends in 911?
20
Well, I produced it to the attorneys.
21
22
Okay.
I believe there are 28 hard drives.
the shrink wrap ones.
15 were non-shrink wrapped.
23
Okay.
24
You say that you didn't get them or whatever.
25
13 were
know why that is.

(775) 786-5584
I don't

145
Well, what I, what I don't know is that I -- I wasn't
told that on 911 are the documents responsive to request
number 30.
Right.
You're telling me it is.
I think they are.
7
8
9
And 911 was the home computer that was
in my house, seized by the FBI.

Q
And you're also telling me there were 28 hard drives.
And I have not been provided 28 hard drives.
10
To my knowledge, they were produced.
11
Ms. Klar said there were 30 at one of the hearings.
12
Those have not all been produced.
13
received 17.
14
We paid for it, but we only
The FBI produced a list, that I was given, of the 28
15
serial numbers.
And that was the ones that I produced.
It
16
was also the list that was produced in a motion to quash in
17
D.C.
18
I believe it was the same list.

Well, when you were asked previously by this court, on
19
June 10th, about whether or not there were any documents that
20
relate to any attempt to you to sell, license, distribute or
21
otherwise exchange for value any interest in software or the
22
technology in the fields of data compression, object tracking,
23
pattern recognition, or anomaly detection from January 18th to
24
present, you told this Court that the only thing that you had
25
were the formation documents of Opspring?

(775) 786-5584

146
That's correct.
And I just said, a minute ago, I don't
think there are anymore.
And I'm saying that they would have to be on that drive
because --
But you said where is the e-mails?
Did you search for them?
My question is did you search
for them?
I mean, I shouldn't -- I shouldn't be -- Mr.
Montgomery, it's not my obligation to search through all of
the, frankly, millions and millions of files that you have
given me.
You have the obligation, sir, to produce documents
10
that are responsive to this request, and tell me where they
11
are, Bate number, or do something --
12
I believe they're on drive 911 or --
13
MS. GAROFALO:
14
Argumentative.
15
answer before interrupting.
16
17
18
19
Okay.
Objection.
And he should let the witness complete his
THE WITNESS:
I believe it's on drive 911.
BY MR. PEEK:
Q
Okay.
Have you filed a pleading that says they're on
drive 911?
20
I'm not the lawyer in this case.
21
Then why did you tell this Court, on June 10th, that they
22
23
24
25
were on drive nine one one?

A
I can't remember every single detail.
You're -- I --
you just acknowledged there are millions of files.

Can you remember what was on all of those millions?

(775) 786-5584

147
I'm not being argumentative.
I thought I did.
I'm
telling you there's a good possibility that they should be on
there.
them.
I will do due dil -- I will do whatever I can to find

Believe me.
And why haven't you done so before today?
I have.
And what have you found in the form of documents that
are responsive to this request number 30, when you were
brought before the Court on June 10th, June 24th, and now
10
11
12
13
today?
A
And I've produced another, what, two million, three
million files since then.

THE COURT:
All right.
It is now five o'clock,
14
and we are going to conclude for the evening.
15
commence the Continued Order to Show Cause hearing at
16
nine o'clock a.m.
17
We will
And I would ask counsel, with respect to exhibits,
18
to take a look at the exhibits and see which ones you will,
19
to which you'll stipulate their admission, and any about
20
which you have questions.
21
few minutes early so you can tell the clerk of court if there
22
are stipulations.
23
So, you might want to arrive a
So, I'll see everyone tomorrow morning.
24
THE WITNESS:
25
MR. PEEK:
Can I ask a question, Your Honor?
Your Honor --

(775) 786-5584

148
1
2
THE WITNESS:
Am I going to go on the stand
right at 9:00 again?
THE COURT:
Yes.
THE WITNESS:
THE COURT:
(Court Adjourned.)
Of course.
Thank you.
We're in recess.
7
8
9
10
11
-o0o-
12
13
14
I certify that the foregoing is a correct

transcript from the record of proceedings
in the above-entitled matter.
15
\s\
Kathryn M. French
August 29, 2008

Official Reporter
DATE
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(775) 786-5584

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DEFENSE'S WITNESSES:
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PAGE:
DENNIS MONTGOMERY (resumed)

Direct Examination By Mr. Peek
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(775) 786-5584
38

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I N D E X
O F
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EXHIBIT NUMBER:
MARKED
Exhibit 45 -- document
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Exhibit 46
136
-- document
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(775) 786-5584
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Case 3:06-cv-00056-PMP-VPC Document 833 Filed 09/03/08 Page 1 of 150

UNITED STATES DISTRICT COURT

DENNIS MONTGOMERY, ET AL.,

FOR DEFENDANT ETREPPID:

FOR INTERESTED PARTY:

Proceedings recorded by mechanical stenography produced by

KATHRYN M. FRENCH, RPR, CCR

Case 3:06-cv-00056-PMP-VPC Document 833 Filed 09/03/08 Page 2 of 150

Reno, Nevada, Monday, August 18, 2008, 1:30 p.m.

This is the date and time set

for a Motion and Continued Show Cause Hearing in case number

3:06-cv-056-PMP-VPC, Dennis Montgomery, and others, versus

eTreppid Technologies, and others.

Present on behalf of plaintiff.

Randall Sunshine, and Mark Gunderson.

defendants, Stephen Peek and Jerry Snyder.

Present on behalf of counter-defendant,

Gregory Schwartz and Bridgett Robb-Peck.

of interested party, Carlotta Wells.

Thank you very much.

As I indicated before the lunch recess,

we do have just a few more items from the case management

perspective that I would like to take up.

First, there are two motions that have been fully

The first is the Montgomery parties' Motion to

to show cause why eTreppid should not be held in civil

contempt, docket 684.

parties replied at 767.

And then there are declarations 685

ETreppid opposed at 729.

And the Montgomery

KATHRYN M. FRENCH, RPR, CCR

Case 3:06-cv-00056-PMP-VPC Document 833 Filed 09/03/08 Page 3 of 150

So I'll go ahead and briefly -- I'm interested.

interested in any comments that counsel would like to make in

support of their positions.

So, Mr. Sunshine, is there anything you would like

during the lunch break.

We have now received a good number

of documents, purportedly, responsive to the books and

records inspection requests.

It has been a voluminous task.

representations to the Court, or certainly to Mr. Peek, that

everything has not been produced, when we cannot definitively

identify documents, all the documents we have, the universe of

documents, and identify documents that we think are missing.

We are having those reviewed.

I would, therefore, ask that the Court continue this

motion, and we would respectfully withdraw it.

It may then be unnecessary to move forward with the

Ms. -- how do you pronounce your name?

And how long -- and

Thank you very much,

KATHRYN M. FRENCH, RPR, CCR

Case 3:06-cv-00056-PMP-VPC Document 833 Filed 09/03/08 Page 4 of 150

undertake that review?

How long do you think you're going to need to

Well, we have experts looking

They're complicated. It is taking a while.

There are, I believe, about 30 boxes of documents.

interested in doing is if you could just give me a date by

which you'll let the Court know one of two things.

thinking at the September status conference, maybe in your