Montgomery v eTreppid #833 | 8/18 OSC Hearing Transcript

8/20/2019 Montgomery v eTreppid #833 | 8/18 OSC Hearing Transcript

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KATHRYN M. FRENCH, RPR, CCR(775) 786-5584

1

UNITED STATES DISTRICT COURTDISTRICT OF NEVADA

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

DENNIS MONTGOMERY, ET AL.,

Plaintiff,

-vs-

ETREPPID TECHNOLOGIES,ET AL.,

Defendant.

::::::::::

No. 3:06-cv-056-PMP-VPC

August 18, 2008

United States District Court400 S. Virginia StreetReno, Nevada 89501

VOLUME I

:

TRANSCRIPT OF

CONTINUED SHOW CAUSE HEARING

A P P E A R A N C E S:

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

Proceedings recorded by mechanical stenography produced bycomputer-aided transcript

Reported by: KATHRYN M. FRENCH, RPR, CCRNEVADA LICENSE NO. 392CALIFORNIA LICENSE NO. 8536

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


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

---OoO---

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. Ellyn Garofalo,

Randall Sunshine, and Mark Gunderson. Present on behalf of

defendants, Stephen Peek and Jerry Snyder.

Present on behalf of counter-defendant,

Gregory Schwartz and Bridgett Robb-Peck. Present on behalf

of interested party, Carlotta Wells.

THE COURT: Thank you very much.

All right. 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

briefed. The first is the Montgomery parties' Motion to

Compel Compliance with the January 22nd, 2008 order, and order

to show cause why eTreppid should not be held in civil

contempt, docket 684. And then there are declarations 685

through 687. ETreppid opposed at 729. And the Montgomery

parties replied at 767.



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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.

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

to add, sir?

MS. GAROFALO: Your Honor --

THE COURT: Ms. Garofalo.

MS. GAROFALO: -- I have spoken to Mr. Peek

during the lunch break. We have now received a good number

of documents, purportedly, responsive to the books and

records inspection requests. We are having those reviewed.

It has been a voluminous task. I would not want to make

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.

I would, therefore, ask that the Court continue this

motion until such time that we've had a chance to complete the

review. It may then be unnecessary to move forward with the

motion, and we would respectfully withdraw it.

THE COURT: All right. And how long -- and

Ms. -- how do you pronounce your name?

MS. GAROFALO: Garofalo.

THE COURT: Garofalo. Thank you very much,



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Miss Garofalo. How long do you think you're going to need to

undertake that review?

MS. GAROFALO: Well, we have experts looking

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

They're complicated. It is taking a while.

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. I'm

thinking at the September status conference, maybe in your

Case Management Report, you can simply report to the Court

that you want this considered, or you want to withdraw it in

about a month's time.

MS. GAROFALO: That would be fine, Your Honor.

THE COURT: Any objection to that, Mr. Peek?

MR. PEEK: No objection, Your Honor.

THE COURT: So, Miss Clerk, with respect to 684,

the consideration of that motion will be deferred until the

September Case Management Conference.

And Miss Garofalo --

MS. GAROFALO: Garofalo.

THE COURT: -- Garofalo has indicated that

their experts are reviewing that motion, and are going to

determine whether they will proceed with it, or whether it

will be withdrawn, and will so advise the Court in their Case

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. And that drew an opposition from Warren Trepp

at docket 761, and a reply at docket 783 in support of

that motion. And I did note, I think, in eTreppid's Case

Management Report, eTreppid took the view that certain

issues were raised in the reply that weren't addressed in

the original motion itself. So, I am aware that that

occurred.

So, Ms. Garofalo.

MS. GAROFALO: Again, Your Honor, I'll keep this

simple. There is really one reason why we believe the tax

returns are relevant and ought to be produced. And, actually,

that reason parallels, to some extent, the reason that the

eTreppid parties are requesting that Mr. Montgomery produce

his tax returns. ETreppid is and was an LLC. Mr. Montgomery

and Mr. Trepp were members, are members of that LLC. And

there is a dispute relating to the copyright claims and as to

whether or not Mr. Montgomery was indeed an employee subject

to the Work For Hire Doctrine, or a partner, so to speak, a

member of the LLC.

One of the reasons that the eTreppid parties wanted

to see Mr. Montgomery's tax returns was to see how he

characterized his income; whether it was characterized as

employee income, salary, or something else. 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. If indeed Mr. Trepp characterized himself as a

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.

THE COURT: All right.

Mr. Snyder.

MR. SNYDER: Thank you, Your Honor.

The sole reason stated here for relevancy of the tax

returns is how Mr. Trepp's, as I understand it, employment

status might impact the determination of Mr. Montgomery's

employment status. The factual basis for Montgomery's

argument is that somehow these two people were in an identical

position, vis-a-vis eTreppid. Thus, the way Montgomery's

income was characterized on his returns is relevant, to the

same extent, Mr. Trepp's is. And I'm not sure that they have

provided any factual support to suggest that.

The two individuals were both members of eTreppid,

certainly, but that -- it doesn't follow from that,

necessarily, that they were both employees or non-employees,

or independent contractors, or something other. And the --

THE COURT: 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. I don't know if that changed. I think Mr. Frye was the

president or -- what was he?

MR. SNYDER: I don't recall Mr. Frye's position.

He was a secretary.

THE COURT: Oh, all right.

MR. SNYDER: And there are substantial

differences between the manner in which the two individuals

were compensated for most of the duration of eTreppid.

Mr. Trepp did not draw a salary. Mr. Montgomery, in contrast,

did, for the entire, entire time. The information that

could be in his tax returns is really not relevant to Mr. --

to whether or not Mr. Montgomery was an employee.

Furthermore --

THE COURT: Well -- go ahead, sir.

MR. SNYDER: I'd rather address your question

then go down a blind alley here.

THE COURT: Well, one of my questions is I

think that the Montgomery parties say in their motion that

there are also affirmative defenses that Mr. Montgomery, the

Montgomery parties asserted, that they feel bear on this

issue of Mr. Trepp's tax returns, unclean hands, and so on

and so forth. And, that I think they quote in their motion

an excerpt from the amended -- from their complaint that, yes,

at paragraph 42 of the Amended Complaint: "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.

Would those affirmative defenses implicate

Mr. Trepp's tax returns and how --

MR. SNYDER: Well, we have no idea because we

have asked specific interrogatories to the Montgomery parties,

asking that they articulate the basis for these claims. And

the responses we've gotten have not -- have been so devoid

of detail, that we really can't evaluate whether or not

Mr. Trepp's tax returns could impact that. I certainly don't

see any reason that's before the Court to think that they

would.

Furthermore, this motion is being brought by

Opspring rather than Montgomery. And I'm not sure if

Opspring has the same basis to assert that defense that

Montgomery might.

THE COURT: Right. And I'm going to ask

Ms. Garofalo about that, because I thought that was odd. And

I'm sure there's an explanation for it.

MR. SNYDER: Okay. 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. Because one of the issues that we were

seeking those for, one of the things they were relevant for,

is to find out whether Mr. Montgomery had been earning

income from other sources, potentially, in violation of his

contractual obligations to eTreppid. There's no such

allegation here.

So if there's any sources of income that are

non-eTreppid, they're certainly of no relevance at all to

these proceedings. And those should be redacted.

THE COURT: Thank you, sir.

Ms. Garofalo.

MS. GAROFALO: Yes, Your Honor. I think,

actually, Mr. Snyder explained to the Court why it is

relevant. Mr. Snyder said that Mr. Trepp did not receive

any salary. Of course, we have no way to know how Mr. Trepp

was paid until we see his tax returns. So, relevance is

relatively broad.

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. All of that cannot be known unless we can review

the tax returns. Or there, really, is no equivalent

information, nothing else that we could possibly rely on

to obtain the information that we need.

THE COURT: Why is, why is -- and I meant to ask

you this -- why it Opspring making this request? Why didn't

Mr. Montgomery do it?

MS. GAROFALO: Your Honor, I don't know the

answer to that. We came into this fairly recently. I don't

know why there's an anomaly and who made the request. And I

don't know why it was done that way. So I can certainly

find that out for the Court later this afternoon, but I cannot

answer that question.


Well, let me just say this. I am mindful that both

you and Mr. Sunshine are coming into this case, for you, at an

unfortuitous time, given the volume of work that you're facing

in getting up to speed. But, I think I alluded earlier to my

frustration that because of the number of lawyers prior to



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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. And I want to be reasonable in

expecting that. I'm just giving fair notice to you that

that's going to be very important to the Court in terms of

how you proceed forward in this case.

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

make. Ms. Garofalo stated that there's no other potential

source for this information. Well, of course there is.

We've already produced every check eTreppid has ever written.

That's a potential source for this information. Any 1099s or

W-2s or K-1s that eTreppid issued to Mr. Trepp is a potential

source for this information.

The notion that his tax returns are the only

potential source for this information is just not accurate.

So there's certainly other less intrusive means, less invasive

of Mr. Trepp's privacy, to obtain this information. And

some of those the Montgomery parties have already availed

themselves of, and they have documents which would shed light

on this. 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. I think it is the only way to get some of

the information that we are seeking. And, I think there is a

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.

And on that basis, we'll submit, Your Honor.

THE COURT: Thank you.

All right. Well, first of all, my observation about

some of this discovery litigation that we've had in this case

is that it impresses the Court, on both sides, that there has

sort of been this tit-for-tat, sort of back and forth about,

well, you got this. I want this. You got an order to show

cause. We want an order to show cause, and so forth. And

I'm hopeful that today marks a turning point in that process.

But that having been said, I'm not suggesting

that this motion is not made without merit, and that I'm not

seriously considering it. I most certainly am. I think what

I'm, what makes sense to me, when I issued the order allowing

Mr. Montgomery's tax returns to be disclosed, it was for the

reasons that Mr. Snyder articulated, in that there -- that

seems to the Court to really be tied closely to this whole

copyright claim, and how his employment is characterized. And



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his tax returns, seems to me, to implicate whether he's an

employee or independent contractor. But I, I do agree, to

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.

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. And he's just represented to the Court that it's

so far not clear.

I'm going to grant the motion in part and deny it in

part. I'm going to grant the motion in so far as Mr. Trepp

will be required to produce his tax returns. But, only in

so far as, at this point, he will disclose -- produce those

portions of his tax returns concerning any compensation that

he's received from eTreppid.

Now, what was -- what were the years -- Mr. Snyder,

you might recall this -- the Court ordered disclosure of

Mr. Montgomery's returns? Do you recall?

MR. SNYDER: I believe it was '98 through 2005.

MS. GAROFALO: Six.

MR. SNYDER: Was it six?

MR. PEEK: I believe it was six, because there

was a stub year, Your Honor. First part of January.

THE COURT: 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. But I am limiting, at this point, the disclosure of

those tax returns as it concerns income from eTreppid only.

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. But, at this point, that's the extent to

which I'm going to grant the relief requested. And that will

be the Court's order.

MS. GAROFALO: Your Honor, may I just seek

clarification --

THE COURT: Yes.

MS. GAROFALO: -- with respect to the term

"compensation." I suspect, although, of course, I don't know,

that Mr. Trepp received certain, perhaps bonuses, perhaps cars

were paid for, trips. I would include that in my definition

of compensation. And I would like clarification from the

Court as to just what the Court means in its order as to

compensation.

THE COURT: All right. Let's talk about how we

want to define compensation.

Mr. Peek.

MR. PEEK: Your Honor, I certainly would expect

that in the preparation of the books, the tax returns for

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. So, I certainly

would expect as I look through and review the tax returns,

that that would be included.


MR. PEEK: So, I mean, I understand that.

THE COURT: What I'm going to do is, I can't --

I don't know what the universe of that compensation from

eTreppid will be, but I'm going to order the parties to, when

you review those tax returns, sir, you understand exactly --

MR. PEEK: I do.

THE COURT: -- obviously, what Montgomery --

what Opspring has asked for. And to the extent there are

issues, I urge you strongly to work together to resolve them

and clarify what constitutes compensation. And should there

be an issue, you can raise it at the September Case Management

Conference. Montgomery, and Opspring's counsel can certainly

raise it. And if you have a problem, we'll resolve it.

MR. PEEK: I think I understand.

THE COURT: I don't know what more -- I think

your point is well taken, Ms. Garofalo. But unless the two of

you want to work today to try to come up with a definition --

MS. GAROFALO: 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. I don't think that

Ms. Garofalo and I need to come up with a different

definition.

THE COURT: That occurred to me, but --

MS. GAROFALO: And my partner, Mr. Sunshine,

just reminded me, could we have a date by which those returns

must be --

THE COURT: Oh, right. Thank you, Mr. Sunshine.

MR. PEEK: May I have just a minute, Your Honor.

This will take some time to review.

Mr. Snyder is going to go to Burning Man, so he

tells me three weeks, Your Honor.

THE COURT: Good for you, Mr. Snyder.

MR. PEEK: 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: That's right. You get all the

misdemeanors, don't you.

THE COURT: We do.

MR. PEEK: So three weeks, Your Honor. Whatever

that date is from this date.



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THE COURT: I think that's sufficient.

MR. PEEK: Is that Labor Day?

THE COURT: Any objection, Ms. Garofalo?

MS. GAROFALO: No. We would just like to have

the information before the depositions, before Mr. Trepp's

deposition.

THE COURT: Right.

MR. PEEK: 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.

MR. PEEK: And we may do it sooner, Your Honor.

THE COURT: Right. Very good.

All right. The next issue I would like to take up

is this question of the privilege log, which I apologize if I

caused confusion earlier this morning about what I was talking

about with respect to the July Case Management Report.

This issue arose, as I think I indicated earlier

this morning, as a consequence of the assertion by the

Montgomery parties of a common interest agreement. The

Montgomery parties filed a Motion For Protective Order, which

this Court denied without prejudice, and we had a discussion

at the July Case Management Conference about this issue.

And now this is my recollection, and I haven't -- I didn't,

over the lunch hour, go back and listen to the tape, but my



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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. I don't

recall if she said just a handful. That might be an unfair

characterization. But my recollection was, look, it's not

going to be that many documents anyway, and so why don't we

prepare these privilege logs.

So, the idea was there were two privilege logs. One

supplied in camera to the Court. And that privilege log was

giving this Court more detail about the subject matter of the

items that were asserted the common interest agreement, I

guess was asserted -- well, I'll get to that in a minute.

And then a different, shorter version would be supplied to

everyone else, all of the other parties. And so that's the

one I received.

And I, of course, read Mr. Snyder's concerns in

eTreppid's Case Management Report, which say there's no

description of materials withheld; no identity of the author;

the date it's written. There's just -- who the recipients

were versus authors, and the reasons held.

So, I asked earlier this morning if I could take a



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look at that. And I have. And here are some comments I

would like to make: That there are 244 communications that

are the subject of this privilege log. That's the first

issue. And I make that comment in light of my earlier

comment about my understanding, my impression from Ms. Klar,

that there would be far fewer that would be the subject of

the privilege log.

Two, I'm assuming that, in both my in camera

version -- I can tell you this. This is no secret. I don't

think it's a big issue -- and in the one provided to counsel,

the privilege asserted is just attorney/client privilege.

Period. That's all mine says. That's all everyone else's

said. My in camera -- whoever that is needs to stop -- has

a long subject matter category which discusses, describes

more in detail the subject matter. And the other people,

other counsel, did not get that. But it does track the, what

eTreppid and the other parties received, does track, as far as

the dates and the participants in the communication. And so

I'm just letting everybody know that.

Here are some problems that I have as a practical

matter.

One, it's out of chronological order, which is --

just it gives me a headache with the number of pieces of paper

that all of us are trying to contend with. So, it's very hard

to follow. There are 2006 dates, and then there are 2007.



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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. And I did get a sheet that advised me who nine of

these people were, who nine of these people are. I knew two

of them. So, seven. But there are 13 people I don't know

who they are, and why the attorney/client privilege is

implicated.

And what I do note on these communications, is

that -- and so I'm really unclear about what we're doing here.

Of the 244 communications, I count four that are simply

between Mr. Flynn and Mr. Montgomery or local counsel. Just

four out of the 244. But, I've got, there are lots -- again,

no secret to anybody because the communication participant

list of the same -- Edra Blixseth and Michael Sandoval appear

on, with a few exceptions -- well, Michael Sandoval not quite

so much, but -- and then there are all these other people. I

don't know who they are. I don't know.

So my question, I guess, is is this the basis -- I'm

asking Montgomery's counsel, Montgomery parties -- are you

saying, well, these conversations are subject, all of these

conversations are subject to the attorney/client privilege



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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. And that was perceived as an adjunct to

the attorney/client privilege, much the way a joint defense

agreement is in a criminal matter.

There is documentation to and from lawyers to an

interested group of people relating to the litigation itself,

in which they are all either parties, or have an interest. It

is my understanding that that is what is reflected, or was

intended to be reflected on the privilege logs.

THE COURT: Okay. For example, just for an

example, you don't need to turn to the pages, but here's

May 4, '07, Dennis Montgomery, Michael Flynn, and Edra

Blixseth. Here's 12-1-06, Michael Flynn, Dennis Montgomery,

Edra Blixseth, Michael Sandoval, Carla DiMare, Al Rava.

In other words, Mr. Montgomery's lawyers are talking to

Mr. Sandoval and Ms. Blixseth.

So, 9-27-06, Michael Flynn, Edra Blixseth,

Tim Blixseth, Jack Kemp -- the Congressman? -- Michael

Sandoval, Dennis Montgomery, Carla DiMare, Phillip Stillman,



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Al Rava. I mean, so apart from the problems that the other

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. And if there is a waiver, why

the Common Interest Agreement applies. And that is -- so this

does not shed any light. And, I don't know who a lot of these

people are.

MS. GAROFALO: Your Honor, what I would propose

to the Court is that we, again, table this perhaps until the

next hearing, at which time we will review the documents.

Mr. Sunshine and I will review the list, narrow it down, try

to work out any issues we can with Mr. Peek, and get the

Court something that at least makes sense for us to discuss,

if there still are outstanding issues.

THE COURT: All right. Well, the other

issue I have, just so you know, is one of the concerns

that -- and this is a problem with e-mail communications. And

certainly -- you can have a seat -- is that in the olden days,

when people used to write letters, you had a letter to someone

and from someone. And, nowadays, we have e-mail strings. And

so an e-mail might start out from person A to person B, then

C, D and E are copied. E responds to A. And on it goes, and

there are these discussions.

So that's a problem, because it's hard -- I can't



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discern who the author of these documents is. And I have

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.

MR. SCHWARTZ: If I could be heard just briefly

on this issue.

THE COURT: You may, sir.

MR. SCHWARTZ: On behalf Atigeo, today is the

first day we've seen this privilege log in any form. And I

have a couple of concerns.

It was not my understanding that the Court was going

to take the privilege log and rule on waiver as to specific

documents. This, procedurally, is a little bit unusual, in

that the Montgomery parties moved for a protective order as to

a broad class of documents.

What I thought was happening here was that motion

was denied. The Montgomery parties were ordered to produce

a privilege log. And the other parties would then have an

opportunity to look at that. If the -- well, you can

disagree, sir, but let me just make a point.

The eTreppid parties then have an issue as to any

particular document; or all of them, if necessary. They can

bring a Motion to Compel. But, there is no standing motion to



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compel any particular documents.

THE COURT: That's true. You're correct, sir.

MR. SCHWARTZ: The reason I raised this is

Atigeo, and/or Michael Sandoval individually, may have

concerns with the production of specific documents. And we

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.

I'm not representing to the Court that we do as to

anything specific because I've just seen this. But, if the

Court is going to rule as to production of specific documents,

I would like the opportunity for Atigeo and Sandoval to be

heard as to those documents.

So I suggest that, after the revisions, if eTreppid

wants to move to compel production, why they're free to do so.

But that then allows everybody the ordinary opportunity to be

heard.

Thank you, Your Honor.

THE COURT: Thank you.

MR. PEEK: Your Honor, I respectfully disagree

with Mr. Schwartz, because I think what Mr. Schwartz is

looking at is the public privilege log that was supplied;

whereas, what the Court is looking at is the in camera

submission. And as I understood from the transcript -- and I

actually have the transcript. And I can certainly confirm to



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the Court that Ms. Klar told the Court, on page 107 of that

transcript, lines 5 through 7, she said: "That is not an

enormous number of documents, and generally, what the subject

matter relates to" -- that was the in camera submission. I

think the Court is addressing the in camera submission.

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;

and, two, if there was a waiver, are they covered by the

common interest privilege.

So I think, respectfully to Mr. Schwartz, I agree

with him perhaps the other privilege log which was given to

the parties, that may be the subject matter of more meet and

confer and motions to compel. But, the in camera submission,

it was my understanding from reading the transcript, is that

that was a submission that was going to the Court, and the

Court was going to then rule on that in camera submission and

compel them or not compel them.

And with respect to the proposal that there be a

further submission, I'd certainly -- if Ms. Garofalo thinks

that she can narrow this down, I welcome that opportunity. I

welcome the opportunity, certainly, to meet and confer with

her further. But, what I would suggest is that the privilege

log which you have in camera is insufficient. And I think,



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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. Because it's only then, as the

Court referenced for example, why is Congressman Kemp --

THE COURT: I don't know if that's who it is.

MR. PEEK: That's who it is, Your Honor. I can

represent to the Court that that is who it is. Why is he, why

is Tim Blixseth, who is now the estranged husband, and maybe

now the divorced husband of Edra Blixseth, there as well?

So, there's a lot of waiver issues. And,

respectfully, Your Honor, as the Court knows from the

pleading, if you go back and look at the Request For

Production, and responses to the Request For Production,

there was no objection at all in that response to request

for production with respect to a common interest privilege.

That request was extant in November of 2007. And it's only

recently that, suddenly, an epiphany, a light bulb went off,

and they said, oh, by the way, we don't have to produce

because of this.

Again, it's just one more of those indicia of delay.

And well, I didn't like -- we didn't get what we wanted here.

Let's try another round here. And so I think that I welcome

the opportunity to meet with Ms. Garofalo or Mr. Sunshine to



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see if we can narrow it. However, I don't have the benefit of

what the Court has.

THE COURT: Well, what I'm noting, I'm just

looking at my court record, my docket 760. It just says,

after I say what we're doing, I say:

"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."

I mean, that's all I -- and I might have said a lot

more.

MR. PEEK: Well, but that's what I understood,

too, Your Honor, to say. So that would result in a ruling

today, if we're here to address that. But if the Court wants

to reserve that until it gets further opportunity to review --

THE COURT: Well, right. But one thing that

troubles me is what Mr. Schwartz has said, is he just got this

today.

Is that right?

MS. ROBB-PECK: Yes, Your Honor.

MR. SCHWARTZ: Yes.

THE COURT: You just received the privilege log?

I thought everybody was supposed to receive it.

MS. ROBB-PECK: Your Honor, that was --

THE COURT: You asked for it, Ms. Robb-Peck.



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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. And the government and the third party

defendants get left out.

THE COURT: You didn't get one either, Ms.

Wells?

MS. WELLS: No. Not until this morning.

MR. SCHWARTZ: And, Your Honor, the issue is

also, specifically, it's not just that we don't have the

identification of the documents --

THE COURT: I know. I know.

MR. SCHWARTZ: -- we need a chance to look at

these documents to the extent we have them.

THE COURT: I know. I know.

All right. I get it. I understand.

MR. PEEK: But we're still dealing with two

sets. We're dealing with the in camera --

THE COURT: I understand.

MR. PEEK: -- and the other set.


MR. SCHWARTZ: With all due respect, Your Honor,

I don't think that's an accurate characterization. But, Your

Honor knows what happened at the last --

THE COURT: What's not accurate?



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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. One just has more detail.

THE COURT: That's right. They're the same

thing. One has more detail.

MR. SCHWARTZ: We don't have any standing order

regarding production. We have a motion to assert a privilege.

And --

THE COURT: That was denied without prejudice.

MR. SCHWARTZ: Correct. And so now if eTreppid

wants to move to compel something, they're certainly free to

do so. But, there's nothing specifically on the table that

my client can respond to.

So, with that, I'll submit.


MR. SCHWARTZ: Thank you.

THE COURT: Okay. First of all, this is --

there are, there's the government, and then there's

Mr. Sandoval and Atigeo. They are to be given the papers

that everyone else is given. In fact, at the July hearing,

Ms. Robb-Peck made a specific request, please give us

whatever everyone else is getting. And that, again, did not

happen. This is the last time that's going to occur in this

case. And if it happens again, I will issue sanctions.

It's not fair -- Mr. Sandoval, in particular, his



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name is all over this privilege log. I mean, and I assumed

that his attorneys saw it.

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. But, we have also not received

things from eTreppid. And so I want to be sure that the

Court's admonition is clear that all parties need to include

us in whatever happens.

THE COURT: Oh. All right.

MR. SCHWARTZ: Thank you.

MR. PEEK: Your Honor, with respect to

Mr. Schwartz's comment that these are not the subject of a

motion to compel, I remind the Court that in eTreppid's

RFP two, request number 26, we asked for all communications

e-mails, et cetera, to Sandoval, Blixseth.

THE COURT: And that was ordered.

MR. PEEK: That was the Court's order

February 21st. So --

THE COURT: And that, the Court -- the

Montgomery parties said we don't understand for sure what

you mean by that. I'm just --

MR. PEEK: Well, that was part of it.

THE COURT: Well, wait, wait, wait.



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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. And I

have outlined the deficiencies the Court finds from the in

camera documents I received. I don't know who many of these

people are. I don't know what Common Interest Agreement there

is. So if this is what is being provided, I'm not finding --

I mean, I have obvious problems with what's been provided.

It's insufficient.

It is imperative that all the parties, henceforth,

receive everything everyone else does. And so that admonition

goes to everyone. And, obviously, Mr. Sandoval has an

interest in the subject of the privilege log, so he should

have gotten it, long before now, as should the government.

There's just -- all right.

So I'm going to -- it is my belief, as Mr. Peek has

stated, that with respect to e-mails in this litigation, the

Court has ruled on the e-mails, in so far as they are e-mails

that were the subject of requests for production number 26. I

can't remember which set whether it was one or two.

MR. PEEK: RFP two, Your Honor.

THE COURT: Request For Production two. The



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Court ruled on that, and ruled again on Friday. So counsel

get one last shot, the Montgomery parties, at revising their

privilege log, if they wish to assert these privileges. And

to the -- now, if Mr. Sandoval -- if counsel for Atigeo and

Mr. Sandoval -- I don't -- was Atigeo a party when --

MR. PEEK: They were not, Your Honor. When

the Court's orders were entered in February, they were not a

party.

THE COURT: Right.

MS. ROBB-PECK: We hadn't been served, I don't

believe.

MR. PEEK: That's correct.

THE COURT: Right. I don't think you had been

served.

Well, let's see what happens with that. And then

if you want -- what I want in September is the revised

privilege log that needs to be produced within two weeks.

What date is that, Miss Clerk?

THE CLERK: Your Honor, that's actually, Monday,

September 1st, which is a holiday.

THE COURT: Oh. Well, make it the 2nd.

THE CLERK: Tuesday, September 2nd.

THE COURT: Tuesday, September 2nd, to all

counsel, the short form. But, it's got to be clearer. And

you have to identify who these people are. And you have to,



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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. Otherwise, you're producing the

documents.

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: Thank you, Your Honor.

THE COURT: -- to raise that issue. And then if

you can resolve it, fine. If not, you can all file reports.

And at the September Case Management Conference, I'll address

them.

MR. PEEK: Do I understand, Your Honor, that

there will be supplements to both? I'll call it the public

privilege log, as well as the Court's in camera privilege log.

THE COURT: Yes. There will be supplements to

both that address the concerns I've outlined.

All right. Ms. Garofalo, do you have any questions?

MS. GAROFALO: I don't, Your Honor. Thank you.

THE COURT: Well, I think that concludes the

matters that concern the Court as to the case management

issues.

And we're now prepared, the Court is now prepared to

proceed with the Continued Order to Show Cause hearing. Just



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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. I've become

interested in keeping time. The order is docket number 659.

It states:

"ETreppid shall have 6.5 hours to present evidence

and to call the following witnesses: Dennis Montgomery;

Warren Trepp; Jonathan Karchmer; and Len Glogauer.

"The Montgomery parties shall have six hours to

present rebuttal testimony, including Dennis Montgomery;

Fulcrom inquiry representative; FTC consulting

representative."

So what I'm going to do is keep the time. It does

not matter to me how counsel for the parties uses your time.

In other words, I'm assuming that you'll be calling all of

these witnesses. But, it's up to you. I'm just letting you

know I'm keeping the time carefully. And when your time is

up, your time is up. 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

representations to the Court were that you would have a

certain amount of time for Mr. Montgomery, and then you

planned to call these three others. So, I mean, I would



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assume that's still the game plan.

MR. PEEK: I'm going to attempt to finish

it in two hours. But to the extent that perhaps I go to

two-and-a-half, I may just have to shorten somebody else.

THE COURT: That's fine. Short somebody else.

That's fine.

All right. So are you prepared to proceed,

Mr. Peek?

MR. PEEK: I am, Your Honor. If I could just

have a moment to pass out -- so that we don't consume that

time -- the exhibits binders. You may recall that the

Court --

THE COURT: Oh, yes.

MR. PEEK: Those were returned to us.

THE COURT: Go ahead.

MR. PEEK: So I'm just going to take a moment to

have those passed out to everybody. I have six copies. One

for the Court. One for the clerk. And then four for the

other parties.


MR. PEEK: Ready, Your Honor.

THE COURT: Before you proceed, sir, I asked

the clerk of the court to let us know the status of the Court

exhibits, and any other exhibits that either were offered or

we need to have admitted.



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So, Miss Clerk, can you report on that, please.

THE CLERK: Yes, Your Honor. At the June 10th

hearing, defendant's exhibit 1 has been marked, not admitted;

At the June 24th hearing, exhibit, defendant's

exhibit 6, 9, and 31 marked. Not admitted;

And at the same June 24th hearing, the Court's

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: Any objection?

MR. SUNSHINE: Your Honor, may we have some time

to look back at those? We can't remember those --

THE COURT: Sure.

MR. SUNSHINE: -- by number. Can we get back to

the Court on that?

THE COURT: All right. Yes.

MR. PEEK: They're the same number --

THE COURT: They're defendant's, just so you

know, 1, 6, 9, 31 were marked, but not admitted. So we can --

Miss Clerk, can you just remind us in the morning --

THE CLERK: Yes, Your Honor.

THE COURT: -- that we need to try again.

THE CLERK: Yes.

THE COURT: All right. And, counsel, I'm going

to defer this to allow Mr. Sunshine and Ms. Garofalo until



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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. And I

don't -- I anticipate there's no objection to that, but please

take this afternoon, this evening to check that out. And

we'll report on that in the morning.

MR. PEEK: I have no objection. I remember what

they are.

I'm reporting to the Court as well, Your Honor, and

I'll have to let Mr. Sunshine know, apparently, when we were

reprocessing and adding exhibits for today's hearing, that

there may have been a change to some of the numbering. And

I apologize to the Court for that. So, I will defer my

request for admission of 1, 6, and 31, until I can clarify

whether or not we changed those numbers.


MR. PEEK: Because I don't want Mr. Sunshine to

say, well, I looked at 1, 6, 9, and 31 --

THE COURT: Okay. So we'll defer, and we'll

take care of this housekeeping matter in the morning.

MR. PEEK: Okay.

THE COURT: All right. So the time is 2:35.

You may call your witness.

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



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Your Honor.

THE COURT: Mr. Montgomery, please.

DENNIS ONTGOMERY,called as a witness on behalf of the Defendant,was sworn and testified as follows:

THE CLERK: Please state your full name for the

record.

THE WITNESS: Dennis Lee Montgomery.

THE CLERK: Thank you. Please be seated.

DIRECT EXAMINATION (resumed)

BY MR. PEEK:

Q Mr. Montgomery, when we had left off on June 24th, I

had been discussing with you the e-mails that you had

produced that you claim, that you said were responsive to

our requests for all e-mails provided to media, whether it be

the Wall Street Journal, New York Times or NBC news.

Do you recall that from two months ago now?

A Yes.

Q And that was Exhibit 9.

And then we certainly had Exhibit 9 and replaced and

redacted. So if the clerk could hand him Exhibit 9. That's

in Volume II.

A Okay. What page?

Q Just the exhibit itself, sir.

A All right.



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Q 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?

A I believe so.

Q 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

Mr. Flynn did that.

Is that correct?

A Yes.

Q Have you had any opportunity to go back and review any

of your correspondence, or documents of these, particularly,

to determine whether or not it refreshed your recollection as

to whether it was you or Mr. Flynn who delivered those to the

Wall Street Journal?

A No.

Q Okay. And I think you told us, and I just want to make

sure that I'm correct, is that all of these e-mails came,

originally, from your computer.

Am I correct?

A No. I don't believe I said that.

Q Okay. You said that they had been placed in some kind

of -- well, your commuter, or some other form of electronic



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media.

Is that correct?

A I believe so.

Q In other words, Mr. Flynn didn't have these in his

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 --

A Yes.

Q -- Mr. Wilke ever came into the picture?

A Yes.

Q Okay. And you had them in electronic form, did you not?

A Yes.

Q And on what type of media or storage did you have the

e-mails?

A I think it was a disk storage.

Q And has that disk drive been produced?

A No.

Q And where is that disk drive?

A Well, I'm still going through the rest of the drives.

Q Okay. So in the last two months -- well, actually, since

at least February -- or excuse me, since November, when the

request was sent out, you have still been unable to review all

of the hard drives to determine on what hard drives you may



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have kept the e-mails --

A That's correct.

Q -- you received, or you took from eTreppid?

A That's correct.

Q Okay. 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?

A Yes.

Q Okay. Do you still have the media -- excuse me, the hard

drives which contained all of the e-mails that were taken by

you and put on these hard drives?

A I'm not certain if that's the case or not.

Q Okay. And what would have happened to all of the

e-mails?

A You mean the hard drives?

Q Yeah. Hard drives or whatever.

A I mean, they could have fail. We have a number of drives

that are dead.

Q Okay.

A I don't know. There's a lot of information. There's

been a lot of drives. And as I've stated before, the drives

have been in multiple people's hands.



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Q Okay. But you now have them in your hands, is

that correct?

A Well, I think the one that --

Q 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?

A Have all of those e-mails?

Q Yes, sir.

A No. I didn't say that. If I did, I didn't say it

correctly.

Q Okay. Well, where did those e-mails originate that were

then provided to somebody to provide to Mr. Wilke?

A Off a drive.

Q Okay. 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.

Q Do you know what a PST file is?

A Yes, I do.

Q You know what a complete original is?

A You mean a PST file?

Q Yes.

A Okay.

Q And native format, you understand that?



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A The PST file.

Q In native format; meaning it has all the metadata

associated with it.

A Yeah.

Q Where are those?

A 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.

Q And when did you find that one drive?

A Um, about two weeks ago.

Q And when did you begin to look for those drives that

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.

When did you begin to look for the PST files in

native format that were the subject matter of the request to

produce?

A In February.

Q So February, until today, you have only recently located,

in the last two weeks, a Drive that may contain some of those

original PST files in native format?

A That's correct.

Q And do you have an explanation as to why you were unable

to locate it from -- in the last, well, six months?



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A I've been going through the drives one by one.

Q Okay. And you recently produced, I believe, 21 hard

drives.

You are aware of that, are you not?

A Yes.

Q 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?

A These are not the FBI ones, I presume. I, I don't recall

what -- I would say, yes. I think I, I understand the ones

that you're referring to.

Q Okay. So the 21 that were recently produced were, came

from backups that you had taken from the eTreppid computers,

is that correct?

A They were backups that were made.

Q Backups that you made, or backups that others made?

A I don't recall who, who made them.

Q Okay. But somebody made them?

A Yeah. Yes.

Q And I think we went through this before, but I'll ask it

again, is that wouldn't you expect to see PST files on these

backups, these 21 hard drives?

A No.

Q Why not?

A Because most of the time the file was open and it was



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passed over.

Q And so most of the time, but not all of the time.

A That's probably correct.

Q Okay. So there should be some PST files in the backups,

should there not be?

A Yes.

Q Okay. And did you look through any one of these 21 hard

drives to determine whether there were or were not any PST

files?

A Yes.

Q And did you find any?

A No.

Q And did do you have an explanation as to why you found no

PST files from the 21 hard drives that you obtained from the

backing up of the various computers from eTreppid?

A Restate that.

I'm sorry I'm insulting you to restate the question.

Q You're not insulting me.

A But, well, you make faces every time I ask you a

question.

Q Well, it's because I think the question was clear.

A Obviously, it wasn't clear to me.

Q I'll ask it again to make it clear to you. 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



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computers, correct?

A I said I made backups.

Q 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?

A That's correct.

Q 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

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?

A I don't recall either way.

Q So the only explanation you have as to why there are no

PST files on these 21 hard drives recently produced, is that

they may have been transferred to another hard drive?

A Yes. And I told you I found one recently.

Q I understand you found one recently. But I'm just trying

to understand, sir, that your only explanation for there not

being any on the 21 hard drives, is that you may have but --

you don't know whether you did, transfer PST files to another

hard drive?

A I wouldn't say that's the only explanation.



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Q Well, what other one is there?

A They've not been in my possession the entire time.

Q Are you suggesting that somebody may have deleted the PST

files from that?

A I don't know that for a fact either way.

Q Okay. And so, who, besides yourself -- well, let me go

through the list you gave me before.

One, they weren't in the possession of the FBI,

those 21 hard drives?

A No.

Q That's correct?

A That's correct.

Q Okay. So the FBI wouldn't have done anything about them,

correct?

A That's correct.

Q And I think the other people that you described to us,

from time to time, who may have had possession of these are

your lawyer, Michael Flynn -- that's one?

A Yes.

Q Secondly, would be Michael Flynn, Junior?

A That's correct.

Q And I don't believe there's anybody else that you told

us.

A Yes.

Q Is that correct? Nobody else?



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A No. There is another person.

Q Who is that?

A Al Rava.

Q Excuse me, Al Rava? That's a new name that we haven't

heard before.

Who a Al Rava?

A Well, he was an associate of Mr. Flynn's.

Q So he was your lawyer?

A That's correct.

Q Are you suggesting that any one of those three

individuals may have deleted the PST files from the 21

hard drives?

A I'm not suggesting that either way.

Q Okay. Well, you're suggesting that people who had

possession of it may have compromised those hard drives.

So the only --

A You've asked me --

Q -- information is somebody deleted the PST files?

A You asked me for another possibility. I gave you one.

Q Well, is that a possi -- just sort of a -- there's always

a possibility. Is there a real reasonable probability that --

A I wouldn't rule out anything with Mr. Flynn.

Q Okay. And when was it that you gave Mr. Flynn the

backups for the eTreppid computers?

A You mean the backup drives that I had?



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Q The backups drives that you had, that should have

contained PST files.

A A few days before the raid on my home.

Q Okay. 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.

Q When did you give them to Mr. Flynn?

A All right --

Q You said a few days before the raid.

A It may have been before that. It may have been -- some

of them may have been when I first met him in late January or

early February of '06.

Q Okay. So sometime, again, prior to the raid.

And for how long did he keep them?

A I would say five or six months.

Q Okay. And then what happened to them after Mr. Flynn had

them in his possession?

A Didn't we go through --

Q We did with respect to the FBI inventory.

A I think you did.

Q I didn't go through it, however, with everything else

that you had.

A I think you did, but I'm --

Q I went through it with respect to the hard drives; the



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terabyte and the 500 gigabyte. But, I did not go through it

with the more recent 21 hard drives you just produced.

A I don't -- what do you mean the terabyte? I'm not

being --

Q You produced, sir, in May --

A Oh, yeah.

Q -- one terabyte hard drive, and one 500 gigabyte hard

drive, sir.

A You're right.

Q You told us, and I went through the examination with you

there --

A Okay.

Q -- where the data had been. And you gave us an

explanation.

So are you going to tell us that the same

explanation that you gave me and this Court, in the two

June hearings, would be the same explanation that you would

give today?

I'm trying to short circuit it, if I can.

A No.

Q No? It was a different explanation.

A Well, I don't have my exact explanation.

See, the facial expressions really gets annoying.

Q I'm sorry it gets annoying to you, sir, but that's me.

A Uh --



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Q Your evasiveness bothers me, too.

MR. SUNSHINE: Your Honor --

THE COURT: All right. All right.

Go ahead, Mr. --

THE WITNESS: I'm not trying to be evasive,

Your Honor.

THE COURT: I know. All right.

I think we're -- you had some confusion about what

Mr. Peek was alluding to. He's now clarified it. So, go

ahead and answer the question, sir.

BY MR. PEEK:

Q They were in Mr. Flynn's possession for six months.

What happened to them after that?

A I think -- I thought I said five.

THE COURT: You said five to six.

THE WITNESS: Okay. Five to six months.

Uh, they were moved to Seattle -- well, Mike Flynn,

you're referring to the father?

BY MR. PEEK:

Q 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.

Q Okay.

A So I don't want -- at least that's what I was told it



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was. I don't -- I really don't know that for a fact but, I

mean, that's what I was told they were.

Q Let me just ask a quick question then.

A Yes.

Q 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?

A Uh, I'm thinking. I'm not -- I think the answer to that

is that's correct. Yes.

Q Okay. And then they, they stayed there for five to six

months?

A I don't know. I'm thinking.

It was roughly that amount of time.

Q Okay. So that would put us sometime in August, September

of 2006?

A Six; that's correct.

Q Where did they go from there?

A Seattle.

Q In your possession, or in somebody else's possession?

A Uh, they were -- there were three scenarios. One, there

was a storage facility in Seattle. You know, a commercial

storage facility. Michael Flynn, Junior took them originally,

and kept them with him in a storage facility in Portland,

Oregon.



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Montgomery v eTreppid #833 | 8/18 OSC Hearing Transcript

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