Montgomery v eTreppid # 731 | 6/24 OSC Hearing Transcript

8/20/2019 Montgomery v eTreppid # 731 | 6/24 OSC Hearing Transcript

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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER

(775) 329-9980

UNITED STATES DISTRICT COURTDISTRICT OF NEVADA

BEFORE THE HONORABLE VALERIE P. COOKE, MAGISTRATE JUDGE---o0o---

DENNIS MONTGOMERY and theMontgomery Family Trust,

Plaintiffs,

-vs-

ETREPPID TECHNOLOGIES, LLC,WARREN TREPP, and theUNITED STATES DEPARTMENT OFDEFENSE,

Defendants.

:::::::::::

::

No. 3:06-CV-56-PMP(VPC)

June 24, 2008

Reno, Nevada

:AND RELATED CASES ___________:

TRANSCRIPT OF CONTINUED ORDER TO SHOW CAUSE HEARING

APPEARANCES:

FOR THE PLAINTIFFS: DEBORAH KLAR and MARK GUNDERSON

Attorneys at Law

FOR THE DEFENDANTS: J. STEPHEN PEEK, JERRY SNYDER,BRIDGETT ROBB PECK, GREGORY SCHWARTZ andANDREW LIESEAttorneys at Law

FOR INTERESTED CARLOTTA WELLS and RAPHAEL GOMEZPARTIES: Assistant U.S. Attorneys

Reported by: Margaret E. Griener, CCR #3, RDROfficial Reporter400 South Virginia StreetReno, Nevada 89501(775)329-9980

COMPUTER-ASSISTED TRANSCRIPTION

Case 3:06-cv-00056-PMP-VPC Document 731 Filed 07/03/08 Page 1 of 265


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(775) 329-9980

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RENO, NEVADA, TUESDAY, JUNE 24, 2008, 9:00 A.M.

---o0o---

THE CLERK: This is the date and time set for

the continued order to show cause hearing in case number

06-CV-0056-PMP(VPC), Dennis Montgomery, et al., versus

eTreppid Technologies, et al.

Present on behalf of plaintiff, Deborah Klar and

Mark Gunderson.

Present on behalf of defendants, Stephen Peek, Jerry

Snyder, Bridget Robb Peck.

Present telephonically on behalf of defendants,

Gregory Schwartz and Andrew Liese.

Present on behalf of interested party, Carlotta

Wells and Raphael Gomez.

THE COURT: Thank you very much. Please just

give me a moment to get my papers in order.

This is a continued hearing pursuant to this Court's

order to show cause concerning why Dennis Montgomery and the

Montgomery Family Trust should not be held in contempt of

court for failure to obey a series of discovery orders that

were issued in this case.

As the parties and counsel well know, we had a

day-long hearing on June 10, and it has been continued to

today.



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(775) 329-9980

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Just some preliminary matters. First of all, the

Court, during the last -- the June 10th, hearing had several

exhibits, and I'm going to admit those into evidence.

Do counsel have any objections to those? I believe

those are Exhibits 1 through -- let's see, the Court's

exhibits, I believe, were 1 through 16. Is that correct,

Ms. Clerk?

THE CLERK: Your Honor, I show 1 through 18.

THE COURT: Were the court's exhibits?

THE CLERK: Yes.

THE COURT: All right. Do counsel have any

objection to the admission of those exhibits?

MR. PEEK: I don't, your Honor. I would just

like to have a list from the clerk so that we know what we

have because I don't think -- I don't think all 18 were

actually shown to the witness and identified.

THE COURT: All right. Ms. Klar?

MS. KLAR: Your Honor, we would like to see a

list before we take a position because --

THE COURT: All right.

MS. KLAR: -- Mr. Peek is right, they all were

not shown to the witness.

THE COURT: All right. What I'll do is at one

of the breaks we'll go ahead and take care of that, and,

Ms. Clerk, if you would provide copies of the exhibit list to



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(775) 329-9980

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counsel, that would be helpful, and then we can take care of

that housekeeping matter.

The other matter, just for the record, the Court did

receive -- was filed at 7:35 p.m. last night docket 696 which

is the Montgomery parties' brief for a limitation on subject

matter of correspondence required to be produced pursuant to

eTreppid's request number 26 in request for production set 2.

And the Court notes it was filed but certainly isn't

saying any more than that because we're proceeding with this

hearing today. Whether it was filed with the intention that

it somehow be considered today, I don't know, but I just

wanted to note that the Court is aware it was filed.

All right. When we were last in session, Mr. Peek

was examining Mr. Montgomery, and I assume, Mr. Peek, you're

ready to proceed?

MR. PEEK: I am ready to proceed, your Honor.

I did want to at least -- I don't know that we need

to address document 696. I did receive it, did review it and

prepared argument to argue it.

And the reason I say that is it may go to at least

the good faith or bad faith of Montgomery in connection with

one of the productions because I think what he's going to

probably say is, well, I didn't understand the order because

that's what Ms. Klar says, I didn't understand the order, I

think it meant something other than what the request said.



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(775) 329-9980

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So I'm not trying to urge the Court to decide that

right now or make a decision on it, but certainly it does

impact this hearing.

THE COURT: Mr. Gunderson?

MR. GUNDERSON: Your Honor, I do have one other

preliminary matter, and that involves the series of motions

involving the Flynn pleadings.

I think, as the Court is probably aware, an article

appeared in yesterday's Reno Gazette-Journal citing

extensively Mr. Flynn's pleadings with this court.

We have fully briefed the issues related to the

Flynn pleadings and believe that proceeding with that motion

still pending would be highly prejudicial to Mr. Montgomery

and raise issues that are collateral to this proceeding, and

we would like to have a ruling on that, if we could, prior to

commencing today's hearing.

THE COURT: Well, I appreciate that,

Mr. Gunderson, and I appreciate your concern.

There are -- we are now at docket number 696 in this

case. This Court and Judge Pro, the district judge, we are

doing our best to try to keep up with the many motions that

are filed.

This is another example when -- this paper was filed

yesterday at 7:30 in the evening. This is a practice. My

problem is there are not enough hours in the day for me to



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(775) 329-9980

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address all of these in the time -- and I appreciate counsel

have very compelling reasons why they are concerned about

this.

I also have a docket of 400 other cases that I have

to attend to on a daily basis. So I'm not prepared and I'm

not going to rule on those motions.

I'm aware they're under submission, and I will do my

very best to -- along with all of the other motions that are

pending -- we spent a day, I think -- I know you were there

last week -- an entire day dealing with a series of complex

discovery motions that the parties have been dealing with.

That's just an illustration of the problems the Court is

confronted with in dealing with this case.

So, while I certainly appreciate your point of view,

the Court is not prepared to rule on those motions today and

will not do so.

MR. GUNDERSON: Well, it is of such importance

to Mr. Montgomery and the Montgomery parties, your Honor, that

we feel that that has to be addressed as an item before we go

forward, and if we can't have a ruling on that, we would ask

that this proceeding be stayed until we do have a ruling so we

know what ground rules we are operating under.

THE COURT: Then this is my question,

Mr. Gunderson. If you were going to make such a request for a

stay -- this hearing was set on June -- we had a hearing on



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(775) 329-9980

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June 10th. Today is June 24th. I received no filing from the

Montgomery parties requesting a hearing in advance of this

that this -- and so on.

And so now here we are at 9:15 a.m. on the day of

the hearing, and you're saying, well, you know, it's of such

importance that we can't possibly go forward when everybody is

here ready to proceed.

MR. GUNDERSON: I don't disagree with that.

Had it not been for the action that occurred

yesterday, which is just a recently-discovered or

recently-performed act when we pick up the newspaper first

thing on Monday morning and here's a news article. I never

even saw it, unfortunately, until after it had been published

and it had been out there in the newspaper and had a chance to

talk to my client.

I was in a hearing all day yesterday in Las Vegas.

I finally had a chance to talk to Ms. Klar and Mr. Montgomery,

and this is the reason that it's being made orally today.

It's not because we didn't have the capacity or the ability or

the intention to bring it to your attention.

If we had an extra day, if we had had a day, that's

the unfortunate part about it. This is the precipitating

event that necessitates my request to the Court.

THE COURT: All right. Thank you.

Mr. Peek.



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(775) 329-9980

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MR. PEEK: Your Honor, I have nothing to say. I

think the Court is well versed in this.

Certainly, if the Court looked at its docket for the

last three or four days, they would see not only the paper

filed at 7:20 last night, but many, many more papers filed at

the end of last week. They certainly had adequate opportunity

to do that.

This is not a jury trial where he can argue jury

prejudice, that the pool has been tainted. Is he saying that

the Court has been tainted somehow by a newspaper article? I

think we know that he's not saying that.

So I don't know what it means the fact that there

was a newspaper article out there.

The papers have been filed, the Court is aware of

them. They've been fully briefed. The Court is certainly

capable, if she did, in fact, read the paper, of separating

the article, which is really a recap of the papers, which the

Court is going to have to do anyway to make the decision. So

I don't see how it has any bearing.

THE COURT: Well, the oral motion to stay these

proceedings that Mr. Gunderson has made is denied, and we're

going to go ahead and proceed.

So with that, are you ready to proceed?

MR. PEEK: I am ready, your Honor. I'm waiting

for Mr. Montgomery to take the witness stand.



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(775) 329-9980

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THE COURT: All right. Mr. Montgomery, take the

stand, please.

MS. KLAR: Your Honor, just a housekeeping

matter?

THE COURT: Yes.

MS. KLAR: During the recent hearing last week,

status conference, you had requested that Mr. Montgomery

submit a declaration, which he did do.

THE COURT: Right.

MS. KLAR: Since we have had an opportunity to

look at those photographs, we have determined that the -- and

we have provided photographs that are Bates stamped 1490

through 1599, DM 1490 through 1599, and those are appended, I

believe, to Mr. Montgomery's declaration.

We would request that those CDs be eliminated from

this case because all of those CDs relate to a time before

Mr. Montgomery ever became involved with eTreppid. They are

all prior to September of 1998.

And given the scope of the search warrant, we're at

a loss to understand why these CDs were taken in the first

place, but they were, and those are the facts, and we think

that those CDs should be eliminated from this record and not a

subject of discovery because clearly they have nothing to do

with anything that is currently before the Court.

THE COURT: All right. So, first of all, just



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(775) 329-9980

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so our record is clear, the court's record that is -- you're

referring to docket number 690, Ms. Klar, which was filed

June 20, 2008, entitled Declaration of Dennis Montgomery

Regarding Efforts to Search For CDs Depicted in FBI Photos?

MS. KLAR: That is correct, your Honor.

THE COURT: All right. And so Exhibit A starts

with -- is numbered DM 890, and I don't know if this is -- is

this serially, consecutively numbered to 14 -- the last page

is 1599. That's what I have.

MS. KLAR: Yes, your Honor.

I think what I -- it's probably part of Exhibit C,

and perhaps on a break I can go through and just identify for

the Court the specific pages that are part of Exhibit C

because I'm not sure they're all in there sequentially.

THE COURT: Maybe I don't have -- maybe I just

have --

MS. KLAR: Exhibit --

THE COURT: Maybe I just have --

MR. PEEK: Your Honor, Exhibit C begins at Bates

number 1556 if it's in your copy.

THE COURT: Oh, okay.

MS. KLAR: That's not --

THE COURT: I've got it.

MS. KLAR: My Exhibit C starts with 1469.

THE COURT: My Exhibit C starts at 1556.



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MR. PEEK: She must have a different Exhibit C

than we do, your Honor.

THE COURT: Well, why don't -- Ms. Klar, this is

what we're going to do, is we need to -- obviously there's

some confusion about what Exhibit C is, and I'm sure it can be

taken care of and clarified during a break.

I'm not sure -- I'm not sure why you're asking that

the Court now decide what is in docket number 690 not be part

of this case. I'm a little unclear why you're asking for that

relief at this time. Do you want to explain that?

MS. KLAR: The reason, your Honor, is really

quite simple. I don't think it's a proper subject of

questions, and I don't want to have the Court spending its

time or our collective time on these CDs when we now

understand that they all relate to a time frame before

Mr. Montgomery ever became involved with eTreppid.


MS. KLAR: So it's a housekeeping matter more

than anything.


MR. PEEK: Your Honor, this needs to be fully

briefed.

I mean, to give you an example, document 1596 says

source code 9-10-96. I don't know if that source code may or

may not relate to CD 1. I don't know if that source code



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(775) 329-9980

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relates to work that Mr. Montgomery said he undertook and

performed before he came to eTreppid and whether or not that

source code has any relationship to this case. It may have.

So I don't think just sort of an on-the-fly motion

by Ms. Klar when we were here last Tuesday and the Court asked

a number of times is there anything else.

These photos have been available to them for some

time now, and now all of a sudden they want to come and say,

oh -- on the moment we're about ready to the start, well, gee,

I don't want to have the Court talk about or include anything

before September 1998.

Well, let's have that briefed. I want to see what

the argument is. I want to know from Mr. Montgomery what

might be on those because I don't know that. Just because

they have a date pre-September 1998 doesn't necessarily not

make them discoverable.

THE COURT: Well, it may, as Ms. Klar has

pointed out, simply be a housekeeping matter, or it may not.

I'm not prepared to rule on that. I mean, again, I have no

idea.

I mean, what -- I haven't reviewed these exhibits

other than to see just generally what they are. I don't -- I

presume that Mr. Peek has had some opportunity to do so, but

I'm not going to enter a ruling at this time concerning what

is and isn't part of this discussion.



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(775) 329-9980

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This is what Mr. Montgomery has been asked to do by

the Court is to provide a review and tell the Court what he's

found, which he's done, and that's fine.

So to the extent that the Montgomery parties feel

that it's extraneous, I think it's going to have to be

briefed, and I'm really at a loss to make a decision on that

at this time, Ms. Klar. It may be well taken.

MS. KLAR: Your Honor, given your comments about

the docket in this case and how many motions have been filed,

I'm just trying to expedite things.

THE COURT: Right. Why don't you -- well, and

you may -- I appreciate that, Ms. Klar.

At a recess or break today, perhaps you can speak

with Mr. Peek, and it may be that you can reach some

understanding because I have an abiding interest in reducing

the number of papers filed in this case, and I suspect counsel

may have a similar feeling, and the parties, so that we can

move the case along.

MR. PEEK: I have a similar one, but I also have

an abiding interest in openness and completeness, and I don't

think I've had openness and completeness, your Honor.

THE COURT: All right. Well --

MR. PEEK: That's why we're here.

THE COURT: Right. We shall see.

I would like the two of you to discuss this issue at



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(775) 329-9980

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a recess, see if you can reach an agreement, and, if you

can't, I guess we'll have to take it up. All right?

Mr. Montgomery, sir, do you understand that you

continue to be under oath, sir?

THE WITNESS: Yes.

THE COURT: All right. Very good. You may

proceed.

MR. PEEK: Thank you.

D E N N I S M O N T G O M E R Y,

recalled as a witness on behalf of the Plaintiff,having been previously sworn, testified further as follows:

CROSS-EXAMINATION RESUMED

BY MR. PEEK:

Q Just to stay on this subject matter for just a moment

about the CDs, I'm going to come back to it later in more

detail, but one of the things that I found absent in your

declaration is an identification of what five CDs you were

unable to locate. What are they?

A There were at least two, if not three. I don't recall

specifically.

Q But you certainly did have the photographs available to

you, did you not, sir?

A Yes.

Q And the photographs certainly were reviewable and had

names on them, did they not?

A Several of them are very difficult to read.



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(775) 329-9980

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Q I understand, but on the ones that you couldn't read it,

you must have said to yourself I can read this one, or I can't

find that one, and there are five of them.

You didn't say I can't read these and I don't know

what they are, you said I know there are five that I could not

locate. What five are they that you did not tell us about in

your declaration?

MS. KLAR: Objection, your Honor, argumentative.

THE COURT: Overruled. Go ahead.

MR. PEEK: Thank you, your Honor.

THE COURT: Answer the question.

THE WITNESS: I don't know specifically.

BY MR. PEEK:

Q Well, did you know when you gave this declaration on the

20th of June, last Friday, that there were less than five CDs

and what the names were? Did you know that last Friday?

A I believe I was doing it by the count.

Q Well, you say,

"Despite my diligent efforts, I have not been

able to locate a small number (less than five) of the

CDs depicted in the FBI CD photos, and I cannot say

with absolute certainty that all CDs reproduced on

Exhibits A, B and C matched CDs depicted in the FBI

CD photos."

So you're just telling me that the five was just



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(775) 329-9980

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based on the count --

A No, I --

Q -- of the number -- sorry -- of the number of CDs in the

photos versus the number of CDs that you have.

A No, I believe there was one or two pictures that I could

not find the CD for.

Q And you didn't tell the Court, though, that you could not

read and therefore could not locate, did you?

A I don't -- I don't have it in front of me.

Q You mean the declaration?

A I don't have the declaration in front of me.

Q Let me just hand you --

MR. PEEK: May I approach, your Honor?

THE COURT: You may.

BY MR. PEEK:

Q This is page 2 of docket -- excuse me, page 3 of docket

690, your declaration, and I'm looking at your paragraph 7.

Do you see that?

A Yes, I see it.

Q And you don't say there that you could not locate the

less than five because you could not read on the photographs

what they were, do you?

A I believe it says the print or -- writing is fuzzy or

illegible.

Q Okay. And you said, "Despite my efforts, I was unable to



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(775) 329-9980

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locate less than five." You don't say I was unable to locate

them because I could not read.

A It says writing is fuzzy or illegible.

Q I was reading from the paragraph, "Despite my efforts" --

A So am I.

Q Okay.

A I'm reading the same paragraph.

Q Now, is there a CD in the group that is labeled "Warren's

old e-mail"?

A I believe there was a picture of that, yes.

Q So you read that one.

A I believe there was a picture of that.

Q Okay. So you could see it was not fuzzy, it wasn't

illegible?

A I don't remember if that was one of the fuzzy ones or

not.

Q Okay. But you remember that, correct?

A Correct.

Q Did you produce that one?

A Not that I know of.

Q And why?

A Because I've been unable to locate it.

Q And where did you search?

A Ever, you mean, or --

Q Well --



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A I thought we went through --

Q First of all, the request for production has been

outstanding for over two years. I'm just wondering where it

was that you searched for the CDs.

A My home in Reno.

Q Okay.

A Home in Yarrow Point.

Q Okay.

A Storage in Yarrow Point.

Q Okay.

A Storage in Rancho Mirage.

Q Okay.

A Home in Rancho Mirage.

Q Okay. Now, when the CDs were returned to you by the FBI,

you recall that eTreppid made a motion to have a forensic copy

of all of the electronic data. Do you recall that?

A No.

Q You don't recall that.

Do you recall that you opposed that request?

A I don't recall that specifically.

Q And do you recall that the Court ordered, in lieu of a

forensic image, that all photographs be taken?

A No.

Q And do you recall that the reason why he wanted

photographs to be taken is to assure all the parties that what



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was returned was, in fact, preserved. Do you remember that?

A No.

Q And do you remember that the Court in its order with

respect to the photographing ordered that you, you know,

preserve and protect those CDs?

A I know there was something saying that I needed to

protect them. I don't remember that it said that they needed

to be photographed.

Q Okay. And do you recall -- now, you picked them up on or

about March 29, correct?

A Yes.

Q And you -- once they were given to you, you were in the

presence of your lawyer, Mr. Pulver? He was present was he

not?

A Yes.

Q And Ms. Blixeth was present, was she not?

A Yes.

Q And Mr. Scalia, who is in the courtroom was also present,

was he not?

A Yes.

Q Okay. And then you got on the airplane, on Ms. Blixeth's

airplane, private jet, with the --

MS. KLAR: Objection, your Honor.

MR. PEEK: I'm trying to get the chain of

custody where these went, your Honor.



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MS. KLAR: We've been through this at the last

hearing extensively.

MR. PEEK: We did not, your Honor.

MS. KLAR: I read it last night in the

transcript.

THE COURT: Well, I'm going to just

foundationally allow you to go ahead and go through this.

There was testimony at the June 10th hearing

concerning Mr. -- and Mr. Montgomery testified, as I recall,

about where he kept --

MR. PEEK: And there's one gap in it, your

Honor, that I want to --

THE COURT: And I think that Mr. Peek is

entitled to just clarify that for the chronology.

Go ahead, sir.

BY MR. PEEK:

Q You got on the private jet of Ms. Blixeth and --

THE WITNESS: Can I move this monitor?

THE COURT: Oh, you may, sir. Thank you. Thank

you.

THE WITNESS: Go ahead.

BY MR. PEEK:

Q You gathered the property returned to you by the FBI, did

you not?

A Yes.



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Q And then you took it on an airplane, Ms. Blixeth's

private jet?

A Yes, but the way the FBI returned the property was very

unusual.

Q I understand that, and that may or may not be the subject

of another hearing, but the property that was given to you by

the FBI was carried by you, or somebody else in this group,

Ms. Blixeth or Mr. Scalia or Mr. Pulver, and taken in a car to

the private jet, correct?

A Yes, I -- the answer is yes.

Q And where did the private jet land?

A Rancho Mirage.

Q And did it drop you off at Rancho Mirage?

A Yes.

Q And when you were dropped off, did you take the material,

the seized property, with you?

A Yes.

Q And then you entered a car?

MS. KLAR: Objection, your Honor, this has all

been gone through by Mr. Peek at the last hearing. He asked

the very same questions.

THE COURT: Once again, I'm going to just

overrule the objection. I think that for purposes of

Mr. Montgomery's declaration, just for bringing us back to the

issue concerning the FBI return, it's helpful to the Court to



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just briefly go back over this chronology of events.

So go ahead, sir.

BY MR. PEEK:

Q You rented a car there?

A I don't recall if I rented a -- yes, actually I did, yes.

Q Okay. And you took the seized property that had been

returned to you and put it in that car, did you not?

A Yes.

Q And that was on or about March 29th or March 30?

A Same day.

Q Okay. Did the plane go directly from Reno to Rancho

Mirage, or did it make a side trip?

MS. KLAR: Objection, relevance, your Honor.

MR. PEEK: I'm trying to follow a chain of

custody, your Honor, to make sure that there is no gap here.

THE COURT: Overruled.

MS. KLAR: Your Honor, there's been testimony

that Mr. Montgomery had the CDs and everything else with him

in his possession, custody and control while he was on the

plane. Whether the plane stopped someplace else or not has

nothing to do with whether or not Mr. Montgomery ceased to

have --

MR. PEEK: We're spending more time on

argument --

MS. KLAR: -- the documents --



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THE COURT: Go ahead.

MS. KLAR: -- in his -- whatever he took from

the FBI in his custody or control.

I mean, the fact that it may have stopped someplace,

what does that have to do with anything?

THE COURT: Overruled. Just go ahead.

THE WITNESS: The plane didn't stop.

BY MR. PEEK:

Q Okay. And how long did that property remain in that

rental car?

A I want to say that day and through the night, though I

did take some of it out.

Q And where did you put it?

A In the room I was in.

Q So you were, what, in a motel room or something?

A No, I stayed on her property.

Q Oh, I thought -- her property is in Rancho Mirage.

A Yes.

Q Is that where Porcupine Creek is?

A Yes.

Q Okay. So some of it, then, was taken out of the trunk of

the car, you think, and put in a room?

A Right, with me.

Q And so how long did it stay in your room and in that car?

A Until I left.



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Q And when was that?

A I believe the next day.

Q And so whatever you took into the room you put back into

the trunk of the automobile?

A That's correct.

Q Where did it go from there?

A To the airport. I don't believe I went directly to the

airport.

Q But wherever you went and had an intermediate stop,

everything went with you?

A No.

Q Okay. So there was an intermediate stop and some of it

was left someplace?

A I had a storage facility in Rancho Mirage.

Q Okay. And what of the property was put in the Rancho

Mirage, if any?

A I don't know exactly but some portion.

Q Some portion of it was put in the storage facility and

some portion of it remained with you, and then where did the

portion that remained with you go?

A Yarrow Point, Washington; Bellevue, Washington.

Q Okay. And did you make a list of what you left at the

storage unit versus what you took with you?

A No.

Q Did you segregate what you put in the storage unit from



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other things that were in the storage unit?

A Initially, yes.

Q Okay. And then when you took it to Washington, did you

put it in another storage unit in Washington, or did you put

it in your home in Washington?

A What I wanted to correct which I didn't say on the

last -- can I answer this --

Q That's why we're doing this, we want to make sure we get

it accurate.

A I didn't mention Washington, I don't believe, and you're

asking that, and if -- okay, and I was here to correct that

today.

Q I thought so, too, that your testimony is different today

than it was the last -- two weeks ago.

A No, it's not, because you asked me specifically about the

disk drives, and I believe what I took was CDs, but either

way, I took some portion with me on the plane to Bellevue,

Washington.

Q Okay. And then you put it in your storage unit there or

in your home?

A My office -- we had a storage unit and there is some went

in my office.

Q Okay. So now we have the seized property broken up into

three segments, am I correct, some in the --

A Yes.



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Q -- Yarrow Point, is that -- Yarrow point, am I saying

that --

A My home was in Yarrow Point, my office is in Bellevue.

Q Some in Yarrow Point, you don't know what exactly, maybe

CDs, maybe the disks, some in your office in Bellevue, and

some in the storage facility in Bellevue; is that correct?

A Yes.

Q And was there -- is that the extent of the -- sort of the

segregation of the -- broken down into three parts?

A From the original pieces --

Q Yes.

A -- that I returned.

Q Yes.

A Yes. I think so, yes.

Q You think so.

Did you, in your office in Bellevue, segregate

whatever it was that you took with you from other items that

you had?

A Yes.

Q Okay. And then what you put in the storage unit in

Bellevue, did you segregate it from other items that you may

have had in that storage unit?

A Yes.

Q And how did you segregate it in your office?

A I just put it in a separate box.



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Q Okay. And how did you segregate it in your storage

facility?

A Same way.

Q Okay. So you put it in a separate box. Was the box

labeled?

A Yes.

Q Okay. So each of the boxes in the Bellevue storage unit

and your office were labeled, correct?

A Right.

Q And what did the labels say?

A FBI-raided material.

Q Okay. And then did you put the -- the seized property

that you put in the Yarrow Point storage facility in a similar

box?

A I'll correct this. The Yarrow Point is my home.

Q I'm sorry, you had said storage facility at Yarrow Point.

A I'm sorry, I'm correcting it.

Q So, again, we are changing the testimony --

A No, we're not changing the testimony.

Q But you put it in your home.

A Right. I mean -- no, there was a storage facility in

Bellevue, Washington, we had an office in Bellevue,

Washington, and I had a home in Yarrow Point.

Q So you put the property in your home in Yarrow Point,

correct?



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A Yes.

Q Okay. And you segregated it from whatever else you had.

A Yes.

Q And how did you segregate it?

A I marked it.

Q And in what manner did you mark it?

A Same way I told you before, FBI-raided material.

Q And was it in a box --

A Yes.

Q -- or more than one box?

A A box.

Q Okay. So now we have three boxes of materials in three

separate locations each labeled FBI-raided material; is that

correct?

A No.

Q Okay. What else did you do?

A Because it took more than three boxes to hold it.

Q Okay. How many different boxes, then, were there and

where were they in each location?

A The physical devices, the computers, the nonelectronic

media I left in the storage place. That would be the

computer, the driver, the Granite Digital device holder.

The only thing that was moved was the actual CDs and

the DVDs from time to time. So what I'm saying --

Q I'm just trying to start with -- I'm getting a starting



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(775) 329-9980

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point, and I want to just stick with the starting point, then

I'll move forward.

I know you want to do it quicker than I do, but the

starting point is you put it into three places, and it was --

some was in boxes. Now, are you telling us some was not --

some of the material was not in boxes?

A They were never at all three places at the exact same

time. So I may have taken two boxes, I may have put one in my

home, one in my office.

Q Well, we're trying to understand what you did.

You stopped off at Yarrow Point and put some of the

seized material in your home in the Yarrow Point; is that

correct?

A That, I believe, is correct.

Q And you don't know what material you put in your home in

Yarrow Point; is that correct?

A That's correct.

Q But you know that you put it in a box or more than one

box, sir?

A I believe initially it was in one -- I don't know if it

was one or two boxes.

Q Okay. So maybe one or two boxes in the home in Yarrow

Point each with a label, I assume handwritten --

A Yes.

Q -- of FBI-raided material, correct?



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Am I saying that -- is that correct or --

A I believe -- I believe so, that's correct.

Q Okay. So then the remaining items you then took on the

airplane with you to Bellevue, Washington, and separated it

again.

A No.

Q Okay. No. Sorry. We'll start over again.

A I didn't take the box physically on the plane, I just put

the material into my luggage, took it onto the plane. When I

got to where I was at, I look a legal box, wrote on it

FBI-raided material and put it in it.

Q Okay. So let's go back then.

So what you had left over of the FBI material that

you did not leave at Yarrow Point fit into a suitcase?

A No.

Q Is that correct?

A No, no, that's not what you asked me.

MS. KLAR: Objection, your Honor, I think that

Mr. Peek is confusing Yarrow Point with Rancho Mirage. The

witness has testified he left material -- left something in a

storage unit in Rancho Mirage.

MR. PEEK: He did not say that.

THE WITNESS: Yes, I did.

THE COURT: I think he did. I think my

understanding --



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MR. PEEK: Then I apologize, your Honor.

THE COURT: All right. So my understanding is

that when -- and so then perhaps you can just clarify, is that

when you went to Rancho Mirage, you left some material in

Rancho Mirage.

You flew from Rancho Mirage to Washington. You have

a residence at Yarrow Point, an office in Bellevue.

Some of the material that you took -- you took

material with you from Rancho Mirage to Washington. Some of

it is in a box or boxes at your home in Yarrow Point labeled

FBI-raided material, another box or boxes are at your storage

unit.

MR. PEEK: No, there are two -- there are

actually now four places, your Honor. If I can go back to

this, I would appreciate it.

THE COURT: All right. So, anyway --

MR. PEEK: I understand the objection, and I'll

try to clarify.

MS. KLAR: Your Honor --

BY MR. PEEK:

Q So what you left Rancho Mirage --

THE COURT: Wait.

MS. KLAR: Your Honor, if I could also make an

objection.

The focus of the hearing is on what you have ordered



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(775) 329-9980

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Mr. Montgomery to produce. He has been ordered to produce

hard drives. There's no dispute. The hard drives have been

produced. They had serial numbers and they've been produced.

He's been directed to produce CDs. We have provided

a declaration, and the only thing that's at issue here is five

CDs, or less than five CDs.

We have now spent 15 minutes talking about where all

of this material was transferred to. Most of it is in no way

relevant to your order.

And my request would be can we keep this focused on

the things that are in dispute which are the less than five

CDs which are the subject of Mr. Montgomery's recent

declaration.

MR. PEEK: Respectfully, your Honor, Ms. Klar

wants to try her case in the way she frames the issues. I

want to try it the way I see the issues framed, and what I see

is that Mr. Montgomery has testified that he had the material,

he commingled it, and he can't find everything.

And now he says I can't even locate five CDs. Not

only has he not located the five CDs, but we don't even have

electronic copies of the CDs, the photocopies of which we now

have, and of the photocopies that we have, and of the

electronic versions that we have, we have electronic copies of

CDs that were not seized, and I don't know why we have that

other than Mr. Montgomery, I'm sure, will say, well, I didn't



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(775) 329-9980

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know what the FBI returned and so I just gave you copies of

things.

He has only given us the date. Five of the 100 and

some odd -- 160 some odd CDs that were seized by the FBI, we

only have five -- approximately five electronic copies of

those. So I've been trying to understand where this material

was, what he did with it.

We also have issues, your Honor, with the electronic

production on the two hard drives, and, you know, I don't know

whether any of that was or was not seized by the FBI, or

whether or not it was maintained and how its integrity was

maintained. I don't know whether there was spoliation of even

the 30 hard drives that he has now delivered to us, copied and

delivered to us.

So there's a lot of material here, your Honor, that

I want to be able to go over with Mr. Montgomery in this

hearing to show the bad faith in which Mr. Montgomery has

conducted himself over the course of the last four months from

February 21st until today, February [sic] 24th.

MR. SCHWARTZ: Your Honor, this is Greg Schwartz

in Seattle representing Atiego. May I make an objection at

this point as well?

THE COURT: Go ahead.

MR. SCHWARTZ: I don't want to weigh into this

because Atiego has no position as to the substantive issue



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(775) 329-9980

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being addressed at the moment, but I do want to add an

objection to Ms. Klar's.

It appears to me that Mr. Peek is going beyond the

scope of the hearing and essentially treating this as a first

chance at a deposition.

There will be an opportunity to depose

Mr. Montgomery at some point. In the interest of my client, I

would ask that the Court limit the scope of this hearing to

the issues the Court needs to make its decision on the order

to show cause which I think are quite a bit more limited than

the scope of Mr. Peek's questioning.

THE COURT: Well, thank you, sir.

Well, this is -- the Court is looking at its order

to show cause, docket 646, dated May 29, 2008. It indicates

that, in summary, among the items the Montgomery parties were

ordered to produce were photocopies of the faces of all CDs

seized during the FBI's March 2006 search of the Montgomery

residence and storage unit and a copy of any CDs seized by the

FBI and marked as eTreppid CDs.

This line of questioning to me is relevant to the

document production that was ordered by the Court to

understand, to the extent, as part of this Court's discovery

order, why or why not these items that were ordered produced

cannot be produced is highly relevant to what the Court

perceives this hearing to be about.



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(775) 329-9980

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And, for example, it may be that -- I would like to

hear what Mr. Montgomery has to say about his efforts to

maintain the items that were seized, problems that arose.

That's helpful to the Court.

So I'm overruling the objections. I do recognize

and understand that this is not a deposition, and to the

extent I wish this proceeding to be narrow in its scope, and I

am mindful of that.

So with those comments -- and I'm mindful -- I'm not

interested in this being a deposition.

MR. PEEK: I'm not either, your Honor.

THE COURT: So -- well, so, proceed with these

questions. I would like to know where these items are, what

happened to them. I think it's relevant. Please proceed.

MR. PEEK: Thank you.

BY MR. PEEK:

Q I apologize, Mr. Montgomery, for my misunderstanding of

the fact that -- some of the items were left at -- actually,

they were left at what's called Porcupine Creek, weren't they?

A No.

Q They were left at Rancho Mirage in a storage unit?

A Yes.

Q Okay. Let me go back then.

So what we had is the first stop you made after

leaving Porcupine Creek was the storage facility in Rancho



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Mirage.

A Yes.

Q And some items were put in that storage facility in

Rancho Mirage.

A Yes, outside of Porcupine Creek.

Q Outside of Porcupine Creek, in a public storage facility

where you pay fees for storage.

A Yes.

Q What was the name of that?

A I don't remember the original name.

Q What was the address of it?

A It was on Diana [sic] Shore.

Q Okay. Now, so the first stop you made was Rancho Mirage,

and items were put there. Were they put in a box?

A You mean, the storage unit?

Q In the storage unit in Rancho Mirage.

A The electronic media was, but the other stuff, the

documents they took from me and so forth, those were put in a

separate box, and then the computer and so forth were just set

by themselves.

Q Were those the three things, then, the electronic media,

the paper documents and the computers, that were left at the

Rancho Mirage facility?

A As a result of what was given to me on the 29th, is that

what you're asking me?



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Q From the material given to you, all of the FBI-seized

property returned to you on March 29th that you took on the

airplane and put in the rental car and then went to Porcupine

Creek, Ms. Blixeth's home, is that correct, or Ms. Blixeth's

estate?

A Yes.

Q Okay. So that's the material I'm talking about.

A Yes.

Q Okay. So we have in the Rancho Mirage storage facility,

a public storage facility, three categories of seized

property, electronic media, paper documents and computers; is

that correct?

A Yes, yes.

Q And the electronic media was put in a box?

A Yes.

Q Was the box labeled?

A You just asked me that.

Q Was the box labeled FBI-raided material?

A Yes.

Q Okay. So it was therefore segregated in some manner from

other items in the storage facility; is that correct?

A Yes.

Q And then you then make another stop at your home in

Yarrow Point; is that correct?

A I leave from --



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Q You went from the Rancho Mirage storage facility to your

home in Yarrow Point; is that correct?

A Yes.

Q And you left also items of the FBI-seized property in

your home in Yarrow Point; is that correct?

A Yes.

Q And what items did you leave there?

A Well, the stuff that was taken.

Q What were they? There was a lot of things taken that are

the subjective of the photographs and the search.

A I believe disk drives and the CDs.

Q Okay. All CDs or just some CDs?

A Some.

Q Okay. So some CDs. All disk drives or some disk drives?

A Some.

Q Okay. So some disk drives, some CDs.

Now, the electronic media that was left at the

Rancho Mirage facility, what electronic media was that?

A Well, you just asked. It's the same material --

Q Which ones --

A The portion that was not taken with me.

Q Okay. So some CDs and some hard drives were left in the

Rancho Mirage storage facility, correct?

A Correct.

Q Some CDs and some disk drives were left in the Yarrow



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Point home, correct?

A Yes.

Q And put in one or two boxes in the Yarrow Point home.

A I think two.

Q Okay. And also labeled FBI-raided material, correct?

A I believe so, yes.

Q And then what was left was put into your suitcase; is

that correct?

A No.

Q Okay.

A Well, I mean, whatever I left here I took with me on the

airplane in a suitcase.

Q That's what I said. Whatever was left that you had not

left at Rancho Mirage or not left at Yarrow Point you put in a

suitcase.

A No, that's not true because --

Q It was already in the suitcase?

A I had to get from Rancho Mirage to Yarrow Point.

Q So --

A That was put in a suitcase, taken on a airplane with me.

When I arrived in Yarrow Point, I took it out of the suitcase,

put into it a box --

Q Okay. I apologize. So you went from Rancho Mirage to

Yarrow Point in the airplane.

A Commercial flight, that's correct.



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Q Commercial flight.

And what you took was the items that had not been

left at Rancho Mirage, and you put them in a suitcase; is that

correct?

A Say that --

Q The items that --

THE COURT: Let me just interject. Let me just

ask a clarifying question.

You got on a plane, and you put any of the items

that were seized by the FBI that you didn't store in Rancho

Mirage, you put them in a suitcase. You flew from Rancho

Mirage to Washington state, so you have one suitcase, correct?

THE WITNESS: Yes.

BY MR. PEEK:

Q Okay, just one suitcase.

A Yes, I believe so, that's correct.

Q Okay. And then you went from -- after it landed you went

to Yarrow Point first?

A I don't recall specifically if I did.

Q But whatever stop you made, one of the stops was Yarrow

Point, and you put some of the material in your suitcase into

one or two boxes.

A That's correct.

Q And they were labeled FBI-raided material.

A I believe so, that's correct.



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(775) 329-9980

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Q And then, as I understood you to say, there was still

some FBI-raided material or seized material that had been

returned to you still left, and you took it to your office in

Bellevue, correct?

A Left where?

Q Left over from what you hadn't deposited in Rancho Mirage

or your home.

A No.

Q So was there anything left over after you --

A No, I believe I originally just put it in my home.

Q Okay. So now we have two locations where the FBI-seized

material was kept within days after it was returned to you.

A Yes.

Q Rancho Mirage and Yarrow Point.

A The storage facility in Rancho Mirage, correct.

Q Okay. And at sometime, as you told us, that it was in

your office and in a separate facility in Bellevue,

Washington, when did that occur?

A I don't know specifically when but sometime during a

three- or four-month period.

Q And was it just the material from your home in Yarrow

Point that you took to Bellevue and then separated into two

parts, or was it some of the Rancho Mirage?

A Both.

Q Okay. So you put some of the FBI-seized material



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together, some from Rancho Mirage, some from Yarrow Point, and

did you take that to your office in Bellevue?

A At some point, yes.

Q At some point.

A Yes.

Q Within, what, the next two or three months?

A I would say over that period, yes.

Q And then you -- was it still in the FBI -- or in the

boxes labeled FBI-raided material?

A I believe so, yes.

Q And then you segregated whatever you took from Yarrow

Point and Rancho Mirage in two, again, more segregations?

A No, because the boxes weren't full. I mean --

Q Well, you told us earlier that you had taken some of the

material that you had collected and put in your Bellevue

office, that was separated into two, some put in a storage

facility in Bellevue and some kept at our office.

A Right. From that suitcase, put into two newer boxes in

Yarrow Point. Now there are four boxes.

Q I'm understanding that so far. Then how many of those

four boxes ended up in Bellevue?

A All of them.

Q All four of them ended up in Bellevue, okay.

A All of it ended up in Bellevue, all of the electronic

media ended up in Bellevue.



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Q What remained at Rancho Mirage, then, just the papers?

A The papers and the nonelectronic physical media, the

actual -- there was a computer and there was, I think, two

storage units, you know, two Granite Digital drive containers.

Q And no media inside the Granite Digital drive containers?

A No.

Q Okay. And the Granite Digital drives were eTreppid

property, were they not?

A I don't recall specifically if they were or not.

Q So all the electronic media, then, ended up in Bellevue,

Washington, of the four boxes?

A I can't say that only four boxes ended up being in Yarrow

Point. It might have been six, it might have --

Q Okay.

A Do you want me to answer the question?

Q I'm waiting for you to answer, sir.

A Well, I'm telling you, at some point I made additional

boxes because the boxes were very heavy. So, you know, I made

two -- I think I made two boxes. I think all together there

were six boxes.

Q So you made two additional boxes that contained what, the

Rancho Mirage material or the Yarrow Point material?

A At some point both.

Q Okay. And now you have six boxes.

A Yes.



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Q And are they all labeled?

A You mean now or then?

Q Then. When you put them into the six boxes -- we know

that there were four boxes you told us.

A I believe so.

Q Okay. Am I correct when I say there were four boxes, two

in Rancho Mirage and two in Yarrow Point?

A Yes.

Q Okay. And of those four boxes, now, they got put into

six boxes; is that correct?

A Yes.

Q How was the material shipped from Rancho Mirage to Yarrow

Point?

A I carried it on an airplane.

Q In boxes or in a suitcase?

A No, in a suitcase.

Q Okay. And that was sometime two or three months after

the property was returned to you?

A I don't -- over what period of time? I don't know

specifically. It would be more like probably closer to, like,

six months.

Q Was it in more than one trip then?

A Yes.

Q Okay. So from time to time you would go to the Rancho

Mirage facility, pick up certain items out of the FBI-raided



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material boxes, put it in a suitcase and take to it your home

in Yarrow Point, correct?

A Yes.

Q And you did that, you don't know how many occasions, but

you did it on a number of occasions?

A I think it was two or three times actually.

Q So the boxes that had been labeled FBI-raided material in

Rancho Mirage ultimately were empty; is that correct?

A I believe so.

Q And then all of the material that you from time to time

carried to Yarrow Point got put into six different boxes,

correct?

A I believe so.

Q And each of those boxes was labeled FBI-raided material?

A I don't remember if all of them were or not. I remember

four of them were.

Q Now, before you began to transport from the six boxes to

Bellevue, your office in Bellevue, had you taken any of the

material out of Yarrow Point or Rancho Mirage to your office

in Bellevue?

A Yes.

Q Okay. So was it from the six -- one or more of the six

boxes?

A Yes.

Q Had the six boxes even been created before you took it to



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your office in Bellevue?

A I tried to keep them in those legal -- I tried to keep

them in those legal boxes.

Q You tried to.

A Yes.

Q And is there a reason why you weren't able to do that?

A I don't understand what your question is.

Q Is there a reason why you weren't able to keep it in the

legal boxes?

A Yes.

Q What was that reason?

A I moved from Yarrow Point to Rancho Mirage.

Q Okay. And did you then have to take the media or that

FBI-seized material out of the box in order to move from

Yarrow Point to Rancho Mirage?

A The packers wanted to put it in their own box.

Q Okay. And who were the packers?

A You mean the name of the company?

Q Yes.

A It was a national company. I don't remember what the

name was.

Q You would have a record of that someplace, though,

wouldn't you?

A Yes.

Q And when did you move from Yarrow Point to Rancho Mirage?



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A I believe it was August or September of '07.

Q And did you understand that you were ordered to maintain

and protect the seized material?

A I -- I don't remember that specifically, but --

Q You don't remember Judge Pro's order along those lines?

A I tried to the best I could.

Q Okay. When the movers put the seized material into their

own boxes as you say they did, did you label the outside of

their boxes to say FBI-raided material or seized material?

A I wasn't there for the move. I don't recall at the

initial part of the packing I was there for.

Q Okay. So you didn't pack up the boxes yourself, you

asked the movers to do that, and you weren't present; is that

correct?

A I was present, I just don't remember if I was present all

the time.

Q Okay. Did you see the electronic media that was --

whatever boxes there were that were left at Yarrow Point, put

into the mover's boxes?

A Well, everything that ended up in Yarrow Point was in

mover's boxes.

Q Now, how much of the electronic media, or the FBI-raided

material, was in the Bellevue office versus what was left at

Yarrow Point that got moved to Rancho Mirage?

A I moved everything when I moved.



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(775) 329-9980

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Q Okay. So at some time you had the FBI-raided material

that you labeled in your office in Bellevue, correct?

A Yes.

Q Some of it but maybe not all, or was it all?

A No, I don't think I ever had all of it at any given time,

no.

Q You had also mentioned at sometime, and perhaps I

misheard, that some of the FBI-seized material was put in a

storage unit in Bellevue. Did I mishear you?

A No, that's correct.

Q That is correct.

And why was it put in -- when was it put into a

storage facility?

A Sometime during that stay between the time it was

returned to me and the time that I left. I don't remember.

Q So when you left Yarrow Point, is that what you mean?

A Yes.

Q So did it go from Yarrow Point to the storage facility,

or from the office to the storage facility?

A It would have went from the office, I believe, to the

storage facility.

Q Did it still have its label on it?

A I believe -- I believe so.

Q And then -- so then that's -- so the material you had in

your office in Bellevue and the material in the storage



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(775) 329-9980

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facility that each had labels on it then went back to your

home in Yarrow Point at sometime?

A I don't know if all the boxes had labels. I testified

that I believe four of them did. You asked me did all six of

them, and I said I wasn't certain.

Q So when you put it into the six boxes, are you telling

the Court that you didn't label the other two boxes?

A I don't remember if they were labeled or not.

Q So what effort, if any, did you take to segregate the

material and maintain its integrity?

A During what period of time?

Q The period of time when you took the four boxes and made

six boxes.

A I don't know specifically what you're asking me.

Q Whatever did you make to segregate and keep and protect

the integrity of, by labeling or something, the other two

boxes?

MS. KLAR: Objection, your Honor, that assumes

that Mr. Montgomery had some obligation to segregate these

materials. I haven't seen an order that required that he do

that.

MR. PEEK: Your Honor, there's a Judge Pro

order, and I -- if he --

MS. KLAR: My --

MR. PEEK: Go ahead, Ms. Klar, sorry.



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(775) 329-9980

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MS. KLAR: My understanding is, is that there is

some order which I've never seen because, as you know, I

wasn't involved in that proceeding.

According to at least counsel for eTreppid,

Mr. Montgomery was required to maintain those materials. But

I'm not aware of any order that says he couldn't integrate

them with the other materials that he had.

MR. PEEK: Your Honor, there's a -- Judge Pro,

when the motion for forensic images was made, issued an order,

and that order -- I believe it's March 27, 28, and I'll try to

locate it at a break --

THE COURT: Was that in the search warrant

proceeding?

MR. PEEK: No, no, it was in this proceeding,

your Honor. You may recall that the FBI on motion by --

excuse me.

I'm trying to think exactly procedurally, your

Honor, what happened on the 41(g), but ultimately Judge Pro

ordered the property -- or you ordered the property returned,

and Judge Pro affirmed your order, then we made a motion in

this proceeding, this consolidated proceeding, to have it -- a

forensic image made of it. Judge Pro denied that request but

ordered that it be photographed and that it be preserved and

protected.

And I believe that order is March -- it was before



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the property was turned over on the 29th.

THE COURT: Just for counsel appearing

telephonically, I'm looking at the docket sheet.

Well, I can't -- I can't recall.

In looking at the docket sheet just quickly, I don't

want to delay the proceedings, but I know that Judge Pro

issued an order concerning the FBI-seized materials that were

returned, but I am not clear on what the language -- what

number the language is and what it said.

MS. KLAR: According to Mr. Peek, it said the

materials need to be preserved and protected. That's not what

his question is asking.

His question is asking what did you do to segregate

it, and I don't think it's a fair question because I don't

think there's any evidence that that was an obligation.

MR. PEEK: Well, the obligation to preserve,

your Honor, would be some method of segregating it so you can

preserve its integrity as opposed to commingling it with other

items. That's what he said he did. That's a clear violation

of Judge Pro's order and clear violation of the duty to -- you

know, the duty to preserve any evidence, otherwise it

constitutes spoliation.

I mean, there's no question about that this was a

subject matter of many disputes, so the fact that even if

there wasn't an order, there is an obligation on the part of a



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(775) 329-9980

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party to preserve evidence. This is evidence.

THE COURT: Well, to the extent you're relying

on Judge Pro's order for this line of questioning, I think you

and Ms. Klar can argue about what the subtext of preserve

means. I need to see -- to review the order to really --

MR. PEEK: I'll ask the question a different

way, your Honor.

THE COURT: All right. Thank you.

MR. PEEK: Thank you. I'd just like to move on.

I don't want to spend --

MS. KLAR: Your Honor, I would just state for

the record I'm not aware of any case law that interprets the

word preserved in the manner implied by Mr. Peek.

It is evident that action was taken to preserve the

evidence. I don't think that there's any case law that says

you can't commingle.

THE COURT: All right. Ms. Wells.

MS. WELLS: Your Honor, I believe the order in

question may be 141 in the docket.

THE COURT: Oh, thank you.

MR. PEEK: Thank you. That's why I need my

laptop. May I -- thank you.

(Discussion held off the record.)

THE COURT: Oh, you're speaking of -- well, this

is proposed order 141. Docket 141 is a proposed order.



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MR. PEEK: Yeah, but I -- no, the Court did not

adopt this order, your Honor, because this is one where we

proposed to have it actually forensically copied.

THE COURT: Well, let's go ahead and move on.

MR. PEEK: We'll get it at the break so we can

move on, and I'll ask the question in a different manner.

THE COURT: Thank you. Go ahead, please.

BY MR. PEEK:

Q Did you, when you created these six boxes, label the six

boxes in any way other than -- label the mixed -- label the

other two boxes in any way?

A I don't remember if they were labeled.

Q Okay. Did you put other electronic media inside any of

the six boxes?

A It's possible, yes.

Q Okay. I'm not asking about possibilities. Do you know

whether you did or did not? A simple yes or no.

A I believe I did.

Q Okay. And what other electronic media did you put in

there?

A I don't recall specifically.

Q Okay. And when you moved from Yarrow Point to Rancho

Mirage, did you put other electronic media, or do you know

whether the movers put other electronic media besides the

seized property into their boxes?



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A I believe they did.

Q Okay. Did you observe them to do that?

A I didn't observe them, but I observed the output.

Q So when you got -- when you say the output, you mean when

you unloaded the boxes --

A Yes.

Q -- unpacked the boxes?

A Yes, yes.

Q Now, was there a time when the electronic media was

stored in a closet in Porcupine -- in Ms. Blixeth's estate at

Porcupine Creek?

MS. KLAR: Objection, your Honor, this goes to

the issue of the Flynn declaration. Mr. Flynn, we believe in

violation of the a

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Montgomery v eTreppid # 731 | 6/24 OSC Hearing Transcript

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