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1 Dennis L. Kennedy, Nevada Bar No. 1462
2 BAILEY KENNEDY
8984 Spanish Ridge A venue
3 Las Vegas, Nevada 89148-1302
Telephone: 702) 562-8820
4 Facsimile: 702) 562-8821
5 Randall
J
Sunshine, Esq. SBN: CA 137363)
6 Ellyn S. Garofalo, Esq. SBN: CA 158795)
7 LINER GRODE STEIN Y ANKELEVITZ
SUNSHINE REGENSTREIF TAYLOR LLP
8 1100 Glendon Avenue, 14th Floor
Los Angeles, California 90024-3503
9 Telephone: 310) 500-3500
Facsimile: 310) 500-3501
10 ADMITTED PRO HAC VICE
11 Attorneys for
DENNIS MONTGOMERY and
12 THEMONTGOMERYF MILYTRUST
13
14
15
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
16 DENNIS MONTGOMERY and the ) Case No. 3:06-CV-00056-PMP-VPC
MONTGOMERY FAMILY TRUST, ) BASE FILE
17 )
Plaintiffs, ) Consolidated with Case No. 3 :06-CV-
l 8 ) 00145-PMP-VPC)
vs )
19
) DECLARATIONOFDENNIS
ETREPPID TECHNOLOGIES, LLC, WARREN ) MONTGOMERY IN SUPPORT OF
20 TREPP, and the UNITED STATES )
RESPONSE TO eTREPPID'S AND
DEPARTMENT OF DEFENSE, ) TREPP'S MOTION FOR CONTEMPT
21 ) [DOCKET 1074)
Defendants. )
22 ) [FILED UNDER SEAL)
1 1 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
n )
AND RELATED CASES. )
M )
25
26
27
28
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1 I Dennis Montgomery, declare as follows:
2
1.
I am the judgment debtor in this matter. As such, I have personal knowledge
of
the
3 facts set forth herein.
4 2.
Judgments have been entered against me in the amount of$26.5 million in favor
of
5 eTreppid Technologies, LLC and Warren Trepp (collectively, eTreppid ).
6 3. On or about February 24, 2009, I received a copy of a Request for Production of
7 Documents served by eTreppid. I searched for documents responsive to the requests and
8 endeavored in good faith to obtain copies of documents called for in the request. In this regard, I
9 went online to obtain bank statements from my Bank of America and Wells Fargo accounts, as well
10 as credit card statements, stretching back to 2002.
11 4. I was surprised when I went on line at Bank of America to see that my email was
12
listed as [email protected] because my eTreppid email address was shut down when I left
13
eTreppid in early 2006. The online banker page showed that this em il was added to the account
14 in February 2007, approximately one year after I left eTreppid. I immediately contacted the bank
15 and was told that my monthly statements had been electronically delivered to the eTreppid email
16 address and that whoever was using this email address had open access to my account. I
17
immediately changed the email address and asked Bank
of
America to investigate. A true and
18 correct copy
of
the online banker page is attached and incorporated as Exhibit A hereto.
19 5.
On April
10
and April
13,
2009,
I
emailed the responsive documents
I
had located
to
20 my counsel. I believe these documents were forwarded to eTreppid's counsel on the same day.
21 The four emails attached, among other things, tax returns (other than those I produced to eTreppid
22 in the underlying action), bank statements for my Wells Fargo and Bank of America accounts,
23
credit card statements and other financial records dating back
to
2002.
24 6. On May 21, 2009, I produced additional documents on a CD Rom containing all of
25
the requested financial documents for the period from 2002 to the present, to the extent they were
26
in my possession or control. included the documents I had previously produced on April 0 and
27 April
13,
2009 because I thought it would be convenient for eTreppid
to
have all
of
the documents
28
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I on a searchable CD. The additional documents on the CD Rom included my most recent bank
2 statements for the period ending March 31, 2009.
3
7.
To date, for the period between 2002 and March 31, 2009, I have produced all bank
4 and credit card statements available to me, all tax returns that were not produced in the underlying
litigation, all Bill-Pay records, the output of my QuickBooks program, and assorted documents
6 such as automobile lease payments, mortgage payments and insurance information. I produced the
7 output because I no longer have the program itself because I no longer needed it when I switched to
8 Bill-Pay. The information I provided shows all deposits, including payments from Blxware, and all
9 payments, including the dates and the payee. I will bring a copy of the CD Rom produced to
I 0 eTreppid
to
Court with me on June 26, 2009,
so
that the Court can review my production
of
11 documents for itself.
12 8. Thus, y May 26, 2009, I had responded to eTreppid s document requests to the best
13 ofmy ability. The only category that I did not respond to sought source and intellectual property
14 which I believed might be subject to a non-disclosure agreement I had executed with the
15 Government and/or the U.S. Protective Order entered in this case.
16 9. The issues relating to my intellectual property have been resolved. Accordingly, on
17
June 3 2009, I produced to my counsel twelve hard drives containing virtually all
of
the
18 intellectual property and source code developed over the past ten years, except for source code and
19 other material that was on hard drives and computers seized by eTreppid from Blxware s
20
Washington offices or which is currently in the possession of the Government. To the extent I had
21
copies of this material, it is on the hard drives in my lawyer s office. Otherwise, I do not have
22 access to the information and am unable to produce it.
23
I
0.
I understand that eTreppid contends that I should be held in contempt for failing to
24 produce certain categories of documents. My efforts to produce these documents are set forth in
25
paragraphs 11 to 22 below.
26
11.
I did the majority
of
my banking online, through Bill-Pay. All
of
the Bill-Pay
27
records in my possession have been produced. I have also produced bank statements that should
28
reflect every check written on my bank accounts for the past seven years. My accounts at Bank of
2
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I America and Wells Fargo were suspended by the banking institutions after eTreppid registered its
2 judgments and have now been closed. Because o the judgments, my credit score is so low that I
3 have been unable to open replacement accounts. Thus, I do not presently have a bank account. I
4 have tried
to
open an account, but have been unsuccessful. I intend
to
continue trying.
5 12 As reflected in bank statements produced to eTreppid, my wife is a signatory on
6 accounts belonging to other family members, such as her eighty-eight-year-old mother. None
o
7 these accounts contain monies belonging to me or my wife. The last statements generated before
8
my
accounts were closed were for the period ending March 31. 2009. These have been produced to
9 eTreppid.
10 13 To the extent I used actual checks, neither o my former banks, Wells Fargo and
11 Bank o America, returned cancelled checks with my bank statements. I have contacted Bank o
12 America and Wells Fargo about obtaining copies o these checks. Bank o America and Wells
13 Fargo have told me that they would charge $15.00 per check. I do not have the financial ability to
14 pay for the checks written over seven years. I am currently unemployed and have no source
o
15 income. I was employed by Blxware, LLC ( Blxware ). The judgment creditors, however,
16 executed on Blxware's assets in Washington State. Accordingly, Blxware is no longer in business.
17
14
I would be happy
to
order the checks
i
eTreppid agrees to pay for them.
18
15
In February 2009, I received multiple checks from my former employer Blxware in
19 the aggregate amount o approximately $600,000. These deposits are reflected on my Bank o
20
America statements. The withdrawal o these sums is also reflected on the bank statements. This
21
amount was withdrawn in a series o cashier's checks. This payment is reflected on the credit card
22 statements I produced. I do not have any other documents relating to this money.
23 16 Contrary to eTreppid's allegation, I have produced the entire output o my
24 QuickBooks file from 2002 until I stopped using QuickBooks and switched to Bill-Pay. I have also
25 produced other electronic files such
as
Bill-Pay records. There is no other electronic financial
26
information that has not been produced.
27 17 I could not locate copies o promissory notes relating to my houses in Washington,
28
California and Nevada. Each house has a first and second mortgage. I produced copies o the bills
3
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on the first and second mortgages for all three houses. Furthermore eTreppid has already placed
2 liens against all three properties and therefore has all o the information necessary
to
attach these
3 properties in satisfaction o its judgments.
4
18.
I have a single term life insurance policy. I cannot find a copy
o
a policy.
5 However I provided evidence o the payment. The policy has no cash value. I also provided
6 eTreppid with documents relating to my car and homeowners insurance.
7 19. I do not have any personal loans other than credit card debt and the Opspring note.
8 eTreppid has the Opspring note which it produced in discovery in the underlying action. I do not
9 have a copy o the Opspring note because it
is
included in the file my former attorney Michael
1O Flynn has liened. Thus there are no personal promissory notes to produce. I produced my credit
11
card statements.
12 20. I make payments on three cars. I make payments
to
GMAC on two o the cars. I
13 have produced documents showing payments
and
amounts due. I also lease a car from Porsche
14
leasing. I produced documents showing the terms and conditions
o
the lease. I also own a truck.
15 I have produced a copy o the pink slip.
16 21. I do not have any documents relating to credit applications at casinos or markers.
17
To
the extent such documents exist they are in the possession o the casinos.
18
22.
I did not maintain check stubsJor payments
to me
by Blxware. However all
19
payments from Blxware are reflected in the bank statements and other financial records I produced
20 to eTreppid.
21 I declare under penalty o perjury under the laws o the United States that the foregoing
is
22 true and correct.
23 Executed on June 17 2009 at Rancho Mirage Ca
24
25
26
27
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1
CERTIFICATE
O
SERVICE
2 Pursuant to NRCP 5 b ), I certify that I am an employee of the Law Offices ofLiner Grode Stein
Yankelevitz Sunshine Regenstreif Taylor LLP, and that on June 17, 2009, I caused to
be
served
3 the within document described as
DECLARATION O DENNIS MONTGOMERY IN
SUPPORT O
RESPONSE TO eTREPPID S AND TREPP S MOTION FOR CONTEMPT
4 on the interested parties in this action as stated below:
5 J. Stephen Peek, Esq.
Jerry M. Snyder, Esq.
6 Adam G Lang, Esq.
Shane M. Biornstad, Esq.
7 Holland Hart LLP
5441 K.ietzke Lane, Second Floor
8 Reno, Nevada 89511
775) 327-3000; 786-6179 - FAX
jsnyder@hollandhartcom,
11
Attornevs for eTrennid and Warren Tre
12 Reid H Weingarten, Esq.
Brian M. Heberlig, Esq.
13
Robert
A
Ayers, Esq,
Steptoe Johnson, LLP
14
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036-1795
15
202) 429-3000; 202) 429-3902 - FAX
16
[email protected]; [email protected]
Attornevs for eTrennid and Warren Trenn
17
Greg Addington, AUSA
U.S. DEPARTMENT OF JUSTICE
18 100 W. Liberty Street. Suite 600
Reno, Nevada 89501
19 E-mail: [email protected]
775) 784-5181 - FAX
20 Attornevs for Denartment ofDefense
Carlotta P. Wells, Sr. Trial Counsel
U.S. Dept. of Justice
Fed.Programs Branch
Civil Division, Room 7150
20 Massachusetts A venue, NW
Post Office Box 883
Washington, D.C. 20044
202) 514-4522; 616-8470- FAX
E-mail: [email protected]
Attorneys for Department ofDefense
Raphael 0. Gomez, Esq., Sr. Trial Counsel
U.S. Dept. of Justice, Fed. Programs Branch
Civil Division, Room 6144
20 Massachusetts A venue, NW
Post Office Box 883
Washington, D.C. 20044
202) 514-1318;
616-8470-
FAX
E-mail: [email protected]
Attorneys for Department
of
Defense
21 [g
[ELECTRONIC) By
transmitting a true copy of the foregoing document s) to the e-mail
addresses set forth above.
22
I declare under penalty ofperjury under the laws of the State ofCalifornia and the United
23 States ofAmerica that the foregoing is true and correct.
24 Executed on June 17, 2009, at Los Angeles, California.
25
26
27
28
Ellyn S Garofalo
Type or print name)
0039641/001/
432571 vOl
sl Ellyn S Garofalo
Signature)
