Montgomery v eTreppid # 1086 | Montgomery Declaration

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Transcript of Montgomery v eTreppid # 1086 | Montgomery Declaration

  • 7/26/2019 Montgomery v eTreppid # 1086 | Montgomery Declaration

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    Case 3:06-cv-00056-PMP-VPC Document 1086 Filed 06/17/09 Page 1 of 6

    1 Dennis L. Kennedy, Nevada Bar No. 1462

    [email protected]

    2 BAILEY KENNEDY

    8984 Spanish Ridge A venue

    3 Las Vegas, Nevada 89148-1302

    Telephone: 702) 562-8820

    4 Facsimile: 702) 562-8821

    5 Randall

    J

    Sunshine, Esq. SBN: CA 137363)

    [email protected]

    6 Ellyn S. Garofalo, Esq. SBN: CA 158795)

    [email protected]

    7 LINER GRODE STEIN Y ANKELEVITZ

    SUNSHINE REGENSTREIF TAYLOR LLP

    8 1100 Glendon Avenue, 14th Floor

    Los Angeles, California 90024-3503

    9 Telephone: 310) 500-3500

    Facsimile: 310) 500-3501

    10 ADMITTED PRO HAC VICE

    11 Attorneys for

    DENNIS MONTGOMERY and

    12 THEMONTGOMERYF MILYTRUST

    13

    14

    15

    UNITED STATES DISTRICT COURT

    DISTRICT OF NEVADA

    16 DENNIS MONTGOMERY and the ) Case No. 3:06-CV-00056-PMP-VPC

    MONTGOMERY FAMILY TRUST, ) BASE FILE

    17 )

    Plaintiffs, ) Consolidated with Case No. 3 :06-CV-

    l 8 ) 00145-PMP-VPC)

    vs )

    19

    ) DECLARATIONOFDENNIS

    ETREPPID TECHNOLOGIES, LLC, WARREN ) MONTGOMERY IN SUPPORT OF

    20 TREPP, and the UNITED STATES )

    RESPONSE TO eTREPPID'S AND

    DEPARTMENT OF DEFENSE, ) TREPP'S MOTION FOR CONTEMPT

    21 ) [DOCKET 1074)

    Defendants. )

    22 ) [FILED UNDER SEAL)

    1 1 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

    n )

    AND RELATED CASES. )

    M )

    25

    26

    27

    28

    0039641/00I/43257lv0I

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    Case 3:06-cv-00056-PMP-VPC Document 1086 Filed 06/17/09 Page 2 of 6

    1 I Dennis Montgomery, declare as follows:

    2

    1.

    I am the judgment debtor in this matter. As such, I have personal knowledge

    of

    the

    3 facts set forth herein.

    4 2.

    Judgments have been entered against me in the amount of$26.5 million in favor

    of

    5 eTreppid Technologies, LLC and Warren Trepp (collectively, eTreppid ).

    6 3. On or about February 24, 2009, I received a copy of a Request for Production of

    7 Documents served by eTreppid. I searched for documents responsive to the requests and

    8 endeavored in good faith to obtain copies of documents called for in the request. In this regard, I

    9 went online to obtain bank statements from my Bank of America and Wells Fargo accounts, as well

    10 as credit card statements, stretching back to 2002.

    11 4. I was surprised when I went on line at Bank of America to see that my email was

    12

    listed as [email protected] because my eTreppid email address was shut down when I left

    13

    eTreppid in early 2006. The online banker page showed that this em il was added to the account

    14 in February 2007, approximately one year after I left eTreppid. I immediately contacted the bank

    15 and was told that my monthly statements had been electronically delivered to the eTreppid email

    16 address and that whoever was using this email address had open access to my account. I

    17

    immediately changed the email address and asked Bank

    of

    America to investigate. A true and

    18 correct copy

    of

    the online banker page is attached and incorporated as Exhibit A hereto.

    19 5.

    On April

    10

    and April

    13,

    2009,

    I

    emailed the responsive documents

    I

    had located

    to

    20 my counsel. I believe these documents were forwarded to eTreppid's counsel on the same day.

    21 The four emails attached, among other things, tax returns (other than those I produced to eTreppid

    22 in the underlying action), bank statements for my Wells Fargo and Bank of America accounts,

    23

    credit card statements and other financial records dating back

    to

    2002.

    24 6. On May 21, 2009, I produced additional documents on a CD Rom containing all of

    25

    the requested financial documents for the period from 2002 to the present, to the extent they were

    26

    in my possession or control. included the documents I had previously produced on April 0 and

    27 April

    13,

    2009 because I thought it would be convenient for eTreppid

    to

    have all

    of

    the documents

    28

    003964 l/OOl/ 432571v01

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    Case 3:06-cv-00056-PMP-VPC Document 1086 Filed 06/17/09 Page 3 of 6

    I on a searchable CD. The additional documents on the CD Rom included my most recent bank

    2 statements for the period ending March 31, 2009.

    3

    7.

    To date, for the period between 2002 and March 31, 2009, I have produced all bank

    4 and credit card statements available to me, all tax returns that were not produced in the underlying

    litigation, all Bill-Pay records, the output of my QuickBooks program, and assorted documents

    6 such as automobile lease payments, mortgage payments and insurance information. I produced the

    7 output because I no longer have the program itself because I no longer needed it when I switched to

    8 Bill-Pay. The information I provided shows all deposits, including payments from Blxware, and all

    9 payments, including the dates and the payee. I will bring a copy of the CD Rom produced to

    I 0 eTreppid

    to

    Court with me on June 26, 2009,

    so

    that the Court can review my production

    of

    11 documents for itself.

    12 8. Thus, y May 26, 2009, I had responded to eTreppid s document requests to the best

    13 ofmy ability. The only category that I did not respond to sought source and intellectual property

    14 which I believed might be subject to a non-disclosure agreement I had executed with the

    15 Government and/or the U.S. Protective Order entered in this case.

    16 9. The issues relating to my intellectual property have been resolved. Accordingly, on

    17

    June 3 2009, I produced to my counsel twelve hard drives containing virtually all

    of

    the

    18 intellectual property and source code developed over the past ten years, except for source code and

    19 other material that was on hard drives and computers seized by eTreppid from Blxware s

    20

    Washington offices or which is currently in the possession of the Government. To the extent I had

    21

    copies of this material, it is on the hard drives in my lawyer s office. Otherwise, I do not have

    22 access to the information and am unable to produce it.

    23

    I

    0.

    I understand that eTreppid contends that I should be held in contempt for failing to

    24 produce certain categories of documents. My efforts to produce these documents are set forth in

    25

    paragraphs 11 to 22 below.

    26

    11.

    I did the majority

    of

    my banking online, through Bill-Pay. All

    of

    the Bill-Pay

    27

    records in my possession have been produced. I have also produced bank statements that should

    28

    reflect every check written on my bank accounts for the past seven years. My accounts at Bank of

    2

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    Case 3:06-cv-00056-PMP-VPC Document 1086 Filed 06/17/09 Page 4 of 6

    I America and Wells Fargo were suspended by the banking institutions after eTreppid registered its

    2 judgments and have now been closed. Because o the judgments, my credit score is so low that I

    3 have been unable to open replacement accounts. Thus, I do not presently have a bank account. I

    4 have tried

    to

    open an account, but have been unsuccessful. I intend

    to

    continue trying.

    5 12 As reflected in bank statements produced to eTreppid, my wife is a signatory on

    6 accounts belonging to other family members, such as her eighty-eight-year-old mother. None

    o

    7 these accounts contain monies belonging to me or my wife. The last statements generated before

    8

    my

    accounts were closed were for the period ending March 31. 2009. These have been produced to

    9 eTreppid.

    10 13 To the extent I used actual checks, neither o my former banks, Wells Fargo and

    11 Bank o America, returned cancelled checks with my bank statements. I have contacted Bank o

    12 America and Wells Fargo about obtaining copies o these checks. Bank o America and Wells

    13 Fargo have told me that they would charge $15.00 per check. I do not have the financial ability to

    14 pay for the checks written over seven years. I am currently unemployed and have no source

    o

    15 income. I was employed by Blxware, LLC ( Blxware ). The judgment creditors, however,

    16 executed on Blxware's assets in Washington State. Accordingly, Blxware is no longer in business.

    17

    14

    I would be happy

    to

    order the checks

    i

    eTreppid agrees to pay for them.

    18

    15

    In February 2009, I received multiple checks from my former employer Blxware in

    19 the aggregate amount o approximately $600,000. These deposits are reflected on my Bank o

    20

    America statements. The withdrawal o these sums is also reflected on the bank statements. This

    21

    amount was withdrawn in a series o cashier's checks. This payment is reflected on the credit card

    22 statements I produced. I do not have any other documents relating to this money.

    23 16 Contrary to eTreppid's allegation, I have produced the entire output o my

    24 QuickBooks file from 2002