Montgomery v eTreppid # 835 | Aug 20 Doc OSC Hearing Transcript | d.nev. 3-06-Cv-00056 835...

8/20/2019 Montgomery v eTreppid # 835 | Aug 20 Doc OSC Hearing Transcript | d.nev. 3-06-Cv-00056 835 Transcript-Aug 20…

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

416

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 20, 2008

United States District Court400 S. Virginia StreetReno, Nevada 89501

VOLUME III

:

TRANSCRIPT OF

CONTINUED ORDER TO SHOW CAUSE

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: Bridgett Robb-Peck Gregory Schwartz Attorneys at Law

FOR INTERESTED PARTY: Carlotta Wells U.S. Department of Justice

Proceedings recorded by mechanical stenography produced bycomputer-aided transcript

Case 3:06-cv-00056-PMP-VPC Document 835 Filed 09/03/08 Page 1 of 120


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417

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



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418

Reno, Nevada, Wednesday, August 20, 2008, 9:00 a.m.

---OoO---

THE COURT: Thank you. Please be seated.

THE CLERK: This is the date and time for

continued Show Cause Hearing in case number 3:06-cv-056-PMP,

Dennis Montgomery, and others, versus eTreppid Technologies,

and others.

Present on behalf of plaintiff. Ellyn Garofalo and

Randall Sunshine.

Present on behalf of defendants, Stephen Peek and

Jerry Snyder.

Present telephonically on behalf of

counter-defendant, Gregory Schwartz.

Present in the courtroom on behalf of

counter-defendant, Bridgett Robb-Peck.

Present on behalf of interested party,

Carlotta Wells.

THE COURT: Thank you very much, Miss Clerk.

And good morning, again, to everyone.

As you know, this is the final day for the Order

to Show Cause Hearing in this matter. And we've had an

unforeseen development. Mr. Montgomery is not present here

in the courtroom. And I guess I'll just indicate on the

record that he is -- well, Mr. Sunshine, why don't you just



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419

report what's occurred for the record.

MR. SUNSHINE: There is a -- Your Honor, there

was an incident that Mr. Montgomery was involved in, of grave

concern to me and to him.

THE COURT: All right.

MR. SUNSHINE: I would rather not report on it

in any more details than that, but I will assure the Court

that there is a very good reason for him not being here.

THE COURT: All right. And counsel for all of

the parties, including Ms. Wells, conferred in chambers with

the Court prior to this hearing, and apprised counsel of the

details of the situation. And the Court will simply say

that Mr. Montgomery has been delayed in getting here. We're

hopeful he will be able to return to the Court. And I'm sure

Mr. Sunshine will keep us apprised of that, and we'll complete

today's hearing as soon as we can. We probably might not

resume until 10:30 or 11:00, perhaps sooner. So, I would

expect all of the parties and counsel to be standing by as

opposed to going somewhere too far away.

And also, in addition to that, the parties and

the Court, counsel and the parties discussed proceeding

in Mr. Montgomery's absence. And, for good reason,

Mr. Montgomery's counsel felt that was not appropriate. That,

he, pursuant to his due process rights, ought to be able to

be present for the balance of this hearing, and the Court



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420

agrees.

So, we'll just recess briefly with respect to

completing Mr. Cooper's testimony. The plan is that after

Mr. Cooper's testimony is completed, I don't believe that

Montgomery parties have further witnesses, and then the Court,

as counsel are aware, has allowed some time for making closing

arguments and so forth. So, we'll certainly proceed with

that.

In the interim though, we do have one housekeeping

matter we can attend to, which is exhibits. So, counsel,

please report to the Court the status of exhibits.

MR. PEEK: Your Honor, I am offering exhibits, I

think it's 1 through 44 that have not already been -- well,

some of those have already been admitted. But rather than try

to go through them, I'm offering 1 through 44. And I know

Ms. Garofalo has objection to at least one of those.

MS. GAROFALO: We do, Your Honor. We do not

object to the admission to any of the exhibits marked by

Mr. Peek, with the exception of Exhibit 29, which appears to

be an e-mail between Mr. Flynn or Carla DiMare, Mr. Flynn's

associate, and Mr. Montgomery. And we would object that that

e-mail is subject to the attorney/client privilege, and the

Common Interest Privilege. I understand that the Court had

previously noted some concerns with that particular exhibit.

THE COURT: What volume is that, sir?



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421

MR. PEEK: Your Honor, it is in Volume VI.

THE COURT: Oh. All right.

MR. PEEK: And, Your Honor, to certainly be fair

to Ms. Garofalo, who has not been here during all of the

proceeding, I will note for the record that the Court had made

the ruling previously. I don't know if that was at the 6-10

hearing or the 6-24 hearing, that all the documents associated

with docket number 635, would be sealed --

THE COURT: Right.

MR. PEEK: -- from the public. But, still

continue to be made available to the government. I made my

objections at that time, and the Court, over my objections,

did enter that sealing order. I still, however, would make

the proffer that this should be admitted because --

THE COURT: Right.

MR. PEEK: -- it certainly goes to one of the

underlying issues associated with this case. And I'll just

leave it at that.

THE COURT: All right. Thank you, sir. I'm

going to sustain the objection to the admission of exhibit,

defendant's exhibit 29.

I think the Court, this e-mail that's listed, does

appear to the Court to be part of this Court's sealing order

concerning matters pertaining to Mr. Flynn. And until such

time as that issue is resolved, the Court is not going to



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422

allow it in as evidence. So, that will be the Court's order.

Other than that, Miss Clerk, all of the remaining

exhibits, pursuant to stipulation of counsel, are deemed

admitted.

Are there any other exhibits?

MS. GAROFALO: Yes.

MR. PEEK: I'm --

MS. GAROFALO: Sorry.

MR. PEEK: I apologize. Let me go ahead and

finish.

Yes, Your Honor, there is one exhibit we propose to

proffer.

THE COURT: Okay.

MR. PEEK: It will be the declaration by a

gentleman named Rob Powers, who is our outside vendor called

Focus, and who has been processing data. And what Mr. Power

did it, at my request, was look at the hard drives with serial

numbers ending in nine one one, and has done some processing

over the course of the last couple of days, and would proffer

a declaration. When I get that, I will proffer it to the

Court.

MS. GAROFALO: If the Court would like to hear

our objection to that declaration now.

THE COURT: Yes.

MS. GAROFALO: We would object to that



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423

declaration unless the declarant is made available for

cross-examination. I don't believe, in the context

of this proceeding, it would be appropriate to admit direct

evidence by way of declaration, while denying Mr. Montgomery

the opportunity to cross-examine the declarant.

THE COURT: Mr. Peek.

MR. PEEK: Your Honor, I think under the

circumstances of an Order to Show Cause, it's appropriate to

issue, to, excuse me, to put into evidence declarations that

relate to searches that have been made of, of various hard

drives. And it wasn't, certainly, until just recently we

learned this, during the testimony of Mr. Montgomery, I

believe, on either --

THE COURT: I think it was yesterday.

MR. PEEK: -- late Monday or Tuesday when he

testified to that. So, we certainly made the effort and would

submit that.

THE COURT: Well --

MR. PEEK: We'll make a proffer about it, if you

would like.

THE COURT: All right. Well, you know,

yesterday, you had Mr. Venables testify in the Court.

Although he wasn't identified as a witness, the Court went

ahead, given the circumstances, and allowed him to testify

over Ms. Garofalo's objection. And the Court is not as



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424

inclined to allow this late declaration. I understand why

you believe it's germane to the issues in the case, but the

Court is going to deny the admission of that exhibit.

As part of this case I will say, as discovery

continues, and if discovery disputes continue to be a problem

in Mr. Montgomery's production, certainly the eTreppid's

parties have leave to file declarations in support of other

discovery matters as they may arise. But for purposes of

this hearing, that exhibit will not be admitted.

MR. PEEK: May I at least -- I'd like to at

least have it marked as part of the record.

THE COURT: You may.

MR. PEEK: And when I do, we can make the

record. Because at least that will show the proffer being

made as part of that.

THE COURT: That's fine.

Any objection to that, Ms. Garofalo?

MS. GAROFALO: No, Your Honor.


MS. GAROFALO: In addition, we do have

plaintiff's exhibit 1 and 2 that were marked yesterday. I

would move to have those put in the record.

MR. PEEK: No objection. They're court records.

THE COURT: Those are. So, plaintiff's 1 and 2

are admitted.



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425

(Whereupon, exhibit 1 and 2 -- documents, were

received in evidence.)

THE COURT: Are there any other exhibits?

MS. GAROFALO: There are.

THE CLERK: There are, Your Honor. The Court

exhibits that have yet to be admitted are 8, 10, 11, 13, 14

and 15.

MR. PEEK: Are they all court pleadings?

THE COURT: Exhibit A is Judge Perry's

Preliminary Injunction Order.

Miss Clerk, is it 10 next?

THE CLERK: Yes, Your Honor.

THE COURT: That's ETreppid's Motion For

Sanctions, court paper;

11 is Montgomery Party's Emergency Motion For

Delaying Hearing, docket 686.

Is it 13 next?

THE CLERK: 13.

THE COURT: That is docket 648, United States'

Notice Pursuant to May 21 proceedings;

14 is docket 660. The United States' Report

Pursuant to Order to Show Cause;

Exhibit 15 is docket 659, Minutes of the Court dated

June 6th, 2008.

And 17 and 18 as well, Miss Clerk?



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426

THE CLERK: No, Your Honor.

THE COURT: So those were the only ones.

So, in other words, they're Court records. And

the Court's interest, by way of explanation to counsel, is I

believe that Mr. Montgomery was examined by the Court as to

some or all of those exhibits.

Any objection to those being admitted?

MS. GAROFALO: No objection, Your Honor.

THE COURT: Mr. Peek.

MR. PEEK: No objection, Your Honor.

THE COURT: All right. Those court exhibits

will be admitted.

(Whereupon, exhibits 8, 10, 11, 13, 14, and 15 --

documents, were received in evidence.)

THE COURT: Any other exhibits?

MS. GAROFALO: No, Your Honor.

MR. PEEK: No more exhibits, Your Honor.

THE COURT: All right. Any other matters that

the parties wish to address before we take a recess while we

wait Mr. Montgomery's return?

MR. PEEK: Yes, Your Honor. And it really goes

back to, sort of, the procedural issue I raised.

You may recall the first day, on June 10th, as to

who carries the burden, and who goes first, and who has the

last say. And I note that the Court agreed that it really is



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427

the burden on the Montgomery parties, on the Order to Show

Cause. However, I think we tripped up a little bit yesterday

by my going forward, even though it really would have been

proper to allow, upon the completion of Mr. Montgomery's

testimony, for the plaintiff to continue the examination. So,

we've kind of done it in reverse order.

And I'm not, I'm not saying anybody did anything

wrong. It just happened.

THE COURT: That's just what occurred.

MR. PEEK: It's just what occurred. I'm just

thinking more in terms of when we get to the oral argument,

whether or not they would then have the first and last say,

which would seem appropriate to me, because it is their

burden. So, it just goes to when we get to the argument.

THE COURT: All right. Ms. Garofalo.

MS. GAROFALO: We would -- we would ask the

Court to continue in the same way that the Court has

proceeded. Mr. Peek has enjoyed the opportunity of putting

on his case first, taken advantage of that. And I think he,

in light of the fact that his case was essentially put on as

the main case, because there was perhaps something of an

error made, I think consistent with that, Mr. Peek should do

his closing first, and the Montgomery parties should follow.

MR. PEEK: I don't have a problem, Your Honor,

frankly, in doing that. I just don't want two things to



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428

occur: One is that there be some statement later that this

is invited error, and that there is an error in the way the

proceedings were conducted. That's number one;

Number two, I don't want the Court to lose sight of

the fact that it is their burden and not mine. I don't have

a problem going first and last, but I want to make sure that

the Montgomery parties understand that it's their burden, and

they're just giving me the right to go first and last.


MS. GAROFALO: With respect to the issue raised

by -- just raised by Mr. Peek, the law is the law. And if

it's the burden of the moving parties, so be it. With respect

to any argument in the future that there was error attached to

the order of the proceedings, I would, preliminarily, say that

I would agree with Mr. Peek. However, Mr. Montgomery isn't

here. And I think he does have to hear that issue, understand

that issue, and agree.


MS. GAROFALO: We will agree not to raise that

as error.

THE COURT: All right. Well, I'll just say

that I'll allow Ms. Garofalo and Mr. Sunshine to confer with

Mr. Montgomery when he arrives, and you can let me know what

his position is. And if Mr. Montgomery concurs that this

won't be perceived as inviting any error, on the record, I



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429

think it's fine to have Mr. Peek go first and last, and the

Montgomery parties respond.

So, that's fine with me. And I think it was an

inadvertence on everybody's part, including the Court's. And

we'll just hear from him. And if he has an objection, we'll

deal with it.

All right. Anything further before we recess?

MS. GAROFALO: Not right now, Your Honor.

MR. PEEK: None, Your Honor.


Thank you then. We'll be in recess. And I will

assume that Mr. Sunshine and Ms. Garofalo will keep the Court

apprised --

MR. SUNSHINE: Yes, Your Honor.

THE COURT: -- of Mr. Montgomery's status.

Thank you.

MR. PEEK: Thank you, Your Honor.

(Recess taken.)

(Back on the record at 10:20 a.m.)

THE CLERK: Court is again in session.

THE COURT: Thank you. Please be seated.

All right. I think it's a good idea to

just go ahead and proceed at this time with Mr. Peek's

cross-examination of Mr. Cooper. I know there are some other

issues to take up with respect to final argument, but we'll



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430

deal with that at the conclusion of the presentation and

testimony.

So, go ahead, sir.

MR. PEEK: Your Honor, would you be so kind

as to notify me when I am about seven minutes away from

completion?

THE COURT: Ms. Mann, can you do that?

THE CLERK: I can, Your Honor.

THE COURT: Thank you.

MR. PEEK: Thank you, Your Honor.

CROSS-EXAMINATION (resumed)

BY MR. PEEK:

Q Mr. Cooper, would you agree with me that an integral

part of the forensic process that one would conduct would be

to have reliably and reasonably reliable and reasonable

interviews and inspections of the data to be examined?

A Yes.

Good morning, by the way.

Q Good morning, Mr. Cooper. I had said good morning to you

already.

And we know that, certainly, in this case, you

didn't conduct any inspections of either the terabyte drive,

the 500 gigabyte drive, or any of the 21 hard drives that have

been produced, have you?

A Correct.



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431

Q And would you believe that what you have done, in the

times that you've spoken to Mr. Montgomery, since Thursday of

last week, Thursday or Friday, believe that you have conducted

what you consider to be reliable and reasonable interviews of

Mr. Montgomery?

A Yes and no. If, to the extent it was looking for

information that I was interested in, yes. But to ask the

generic, kind of in the vacuum, question is it a full and

complete interview taken out of context, I wouldn't call it

a full and complete interview for every issue related to this

case, etcetera, which goes back to your question.

In general, yes, for the forensic process you want

to interview and go through the process. It depends on what

the specific issue is.

Q And you would also agree with me, would you not, that

reading what has been testified to under oath would also be

important to the forensic process?

A Again, it depends on the circumstance, which is one of

the issues that's come out in this matter. You have to look

at things in context. So depending on what the issue is, it

could be relevant. It might not be relevant.

Q Well, the issue that we have been talking about is how

the dates got placed onto the terabyte drive and the 500

gigabyte drive. That's central to your testimony here, is it

not?



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432

A I don't think so.

Q Well, I understood you to say that you believed that

Mr. Montgomery had performed and used cloning software, and

that's the explanation for why the dates are on -- the earlier

dates are on the terabyte drive and the 500 gigabyte drive.

That was your testimony, was it not?

A I believe not. I said, assuming that that's the case, it

provides an explanation on how the dates are different than

what Mr. Karchmer had opined about. I don't know what

mechanism he used.

Q Okay.

A Nor did I try to inquire and get perfect clarity on

that. I was simply providing an explanation of why I thought

Mr. Karchmer's conclusion might not be valid.

Q Okay. Well, are you offering an opinion to this Court

that, in fact, the reason for the dates that appear on the

terabyte drive and the 500 gigabyte drive, which are earlier

in time than when the drives were available in the market

place, comes from the cloning software.

Is that your opinion?

A No.

Q Okay. That's all. Thank you.

A I'm not saying that it's not. I just don't -- I don't

know.

Q I'm just asking if that's your opinion. And I think you



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433

said, no, it's not.

A Correct.

Q Am I correct? Okay.

And then with respect to that cloning process, let

me see if I understand a little bit about that. I think you

testified that you understood that there were hard drives

that contained gigabytes of data that when the, when the sum

of them is added up, equals a million -- or excuse me, equals

one terabyte. I think you said you knew there weren't any

terabytes in 2003.

A Correct.

Q And that the --

A There were -- terabyte drives were not made in 2003.

Q Right. And that the explanation for the various, for the

date of November 2003 came -- could have come from the cloning

process, correct?

A Yes.

Q And in order to clone, you would have had to have had a

number of different hard drives from which you would export

data on to the one terabyte, would you not?

A Correct. You're assuming that to fill up a one terabyte,

you would need several smaller.

Q And --

A That's my understanding.

Q And so you would have, perhaps, a 100 gigabyte, a



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434

250 gigabyte, perhaps a 300, if that was available. Something

like that?

A Yes.

Q And each one of those drives would have had a date on it,

would it not?

A Many dates.

Q It would have had many dates?

A There is, uh, each file has at least three dates

associated with it for every file. And then depending on how

that source hard drive -- and, in the vernacular, source hard

drives are the drive you copy from. And target hard drives

are where you copy to.

Q Okay.

A If a source hard drive was an operating system hard

drive, then there would be operating system information and

operating system metadata on that source drive.

However, if the hard drive was not an operating

system drive, but just a data, a data holding device as a

second hard drive, or a third hard drive for a computer, it

would not have that same operating system knowledge and

information on it.

Q Would it have dates on it?

A Oh, most definitely.

Q So each one of the hard drives would have had a date on

it, correct?



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435

A Well, at least three dates per file. And there might be

other metadata dates also.

Q And it's -- so when you're cloning each of these hard

drives, which are the source hard drives, you clone the dates

off of those source hard drives, do you not?

A The user doesn't clone the date. The user clones the

drive, and whatever is on the drive copies over with it.

Q Would that include then the dates?

A Whatever is on that drive.

Q Okay. Now --

A Let me qualify that a little bit.

Q Sure.

A There are two types of cloning processes. One is a

copying of all the files. And one is a copying of everything

that's on the drive. So if somebody were to copy using a

cloning tool, just the files, you would get all the files

copied over.

Q And that would be --

A Which is essentially a backup.

Q And that would be without the dates?

A Well, it would have the file dates. But it wouldn't

necessarily have the operating system dates or the operating

system environment copied with it.

Q So how would it get the dates if it's cloned, if at all?

A Files have dates.



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436

Q Okay. So just the files have dates?

A If you were just copying the files.

Q Okay. And the other system, what dates would be taken

off?

A When you say "taken off," you mean removed or copied?

Q Not removed. Copied. I apologize.

A Well, from the source -- strike that.

When you issue the copy or backup or clone command

or instruction, or invoke the copy or clone or backup program,

you have to tell it what you want the program to do with the

source, and where to put it on the target. In the simplest of

worlds, if you just clone drive A onto drive B, you get it

all. But if you were to say I only want to copy the files

from A onto B, then there were certain things you wouldn't

get. If you said I want to copy all of the operating system

over to B, then you would get those pieces of information.

So, it's a very dependent function on how you

instruct the copying program, what I'll refer to the program,

how you instruct the program to act.

Q If you instruct the program to give the dates of that

operating system, what date would you get?

A You would get the date that existed on the source media.

Q Okay. And if you didn't give that instruction to provide

the date, what date, if any, would you get?

A Well, it's -- sorry it's how you ask your question. I



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437

don't believe that you instruct it to give the date. You

instruct it to copy operating system data or file data.

Q Oh, I see.

A And depending on what you instructed it to do, it carries

things with it. And there are things called switches. So

when you invoke these programs, you also select switch values.

And a switch value can say copy subdirectories also, or not.

Preserve dates, or not. You can -- you can tell, again, the

program what you want and how you want it to occur.

Q Okay. So if you select copying the operating system,

what date would you get on the target?

A Your question is, uh -- it's a confusing question, but

you didn't mean it to be confusing.

Q Thank you.

A When you -- your question is if someone copies the

operating system, the operating system are a collection of

files. So by copying the operating system, you are simply

copying the files, like any other file. And you're getting

the dates of the files that make up the operating system.

I think what you meant to ask is if you copy the

operating environment --

Q Thank you.

A -- then you would --

Q And I don't have to pay for this seminar.

A -- then you would get the dates that exist on the source



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438

device copied over to the clone, unless you invoked the switch

that said don't preserve dates. In which case, the date that

it copied over would be the date, would be the dates of files

and things because -- and there's.

Q And what would you get, just the file dates only?

A No. You can still get the entire operating environment.

But the question is what is the date stamp of those pieces

of files. And there's been a lot of conversation by a lot of

people in this matter about dates. Maybe to help understand,

there's something called a create date. As I said, there are

at least three dates per file. One of them is create date.

The create date is a misunderstood date. It doesn't

mean when the file was created. It means when the file was

created on the media that you are looking at it on.

So if you create a new Word document, and you

created it today, August 20th, it will have a create date of

August 20th. If you edit it on the 21st, and you access it

on the 22nd, the three dates would be created on the 20th,

modified on the 21st, accessed on the 22nd.

Q That's the metadata?

A That's the standard metadata, not the extended metadata.

Q Right.

A If you then copied that file to another piece of media on

the 23rd, it would have a create date of the 23rd; a last

modified date of the 21st; and an access date of the 22nd.



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439

Q Okay.

A Because you hadn't modified it on the new media, hadn't

accessed it on the new media, but it was created on the new

media on the 23rd.

Q Okay. You probably kind of already know where I'm going

here, but what's confusing --

A I don't know where you're going I'm just answering

questions.

Q -- what's confusing to me is that we know the backup

drives. We know that what was copied was backup drives, and

provided to us -- or do you know that even?

A That's what the testimony has been. However,

unfortunately, the word backup is not a term of art and

it has many different interpretations.

Q But we were told, so I won't use -- I'll try to use the

term generically, and I may be using it erroneously -- but

what we were told in testimony here is that, from time to

time, Mr. Montgomery would go to a computer station and he

would -- I'll use the word backup. That may be the wrong

word -- backup everything that was available for backup on

that computer.

A So I've read much of the testimony. I'm sure that I have

not read it all --

Q Did you read it last night then?

A I did read some last night.



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440

Q I figured you would.

A And this morning.

Q I figured you would.

A Particularly June 10 and June 24, because you mentioned

that had been discussed extensively.

Q Uh-huh.

A And, unfortunately, in the world today, when people talk

about doing backups, it requires the questioner to drill down

a little further into what the answerer means. The word

backup is a generic word. It means to copy files in some

fashion or another. And depending on the tool that you use,

you might not get all the files. You can backup the My

Documents folder. You can back up all --

Q We understand that, Mr. Cooper. I just want to focus on

my question.

A Okay.

Q That's what Mr. Montgomery testified what he did. We

understand he may not have copied everything off of that

station. And I haven't asked you to opine, and I'm not going

to ask you to opine on that. But, he would have been backing

up, from time to time, the computer work stations at eTreppid.

You know that now?

A That's what his testimony says.

Q And those would have had dates on them of some type,

would they not?



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441

A Most definitely.

Q And the dates would have been, would they not, the date

on which the backup occurred?

A No.

Q Okay. Would they have just the dates of the files?

A When the file is on the source machine, it has the three

dates. And those are referred to as CAW, created access --

Q I want to know what the date is on the hard drive?

A I'm about to answer that.

Q Okay. If you would, please, because I only have a little

bit of time here.

A I'm trying to answer your questions.

So when you back up files from source to target,

depending on the backup tool that you use, it will either

preserve CAW, or it will modify CAW.

Q I just want to know what date would be on that backup

drive.

A Depending on the software used, and the switches invoked,

that will determine what dates are on the target backed up

drive.

Q Okay.

A It can either be CAW, or it can be modified CAW.

Q Okay. Would it show, in any way, the date that the

backup occurred?

A If the backup tool or utility or program did not preserve



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442

CAW, then it would show the create date would be the date the

backup occurred. However, if the backup utility preserves

CAW, then the create date will not show the date that the

backup occurred.

Q And then all we would have would be just the dates of the

files and no other date.

A You would have -- essentially, correct. You would have

the dates that came from the source machine. And you would

have no new dates, because all old dates were preserved.

Q All right. Okay. I understand that.

So these source drives that were copied, what dates

would be on those before they were cloned?

A It depends on which program was used, and which switches

were invoked, whether the CAW was preserved or the CAW was

modified. And I do not know what program was used. And I do

not know what switches were invoked.

Q Okay. We have here, again, the source media of a

collection of hard drives -- we don't know how many, do we --

A I --

Q -- that were ultimately put onto the one terabyte?

A Correct. I don't know. I've heard that it was --

Q Okay.

A -- four or five or so.

Q And how -- did you hear that from Mr. Montgomery or did

you read that in the testimony?



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443

A I believe I recall that from a conversation with

Mr. Brandston. But, I don't know if I also read it or heard

it somewhere else.

Q Okay. And you just read the transcript last night and

this morning?

A Yes.

Q Did you see anything in the transcript that referred to

the terabyte drive sources being four or five hard drives?

A I don't recall. I don't think so.

Q Okay. And did you also understand that the four or five

hard drives from which it was copied were -- I'll use the term

generically -- backups of data from the personal work stations

at eTreppid?

A No. I understand that not to be the case.

Q Okay. What do you understand those source drives, those

four or five source drives to be?

A Derivatives from backups at eTreppid.

Q Okay. So --

A Because --

Q Sorry. Go ahead.

So, it may have been?

A I didn't know that it wasn't done.

Q Okay. I apologize, because I know you --

A My understanding is that there were backups done of

eTreppid employees' hard drives. And then Mr. Montgomery



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444

reviewed files on some of those drives, some of those files.

Q Those are the target hard drives. The original target

hard drives?

A Source hard drives.

Q Original source hard drives. Okay.

A Well, technically, there's a clarification that the

original employees' drive is source. It's copied to target.

Q That's why I used target.

A But then that target becomes a source to copy from.

Q Okay. Let's call them the backups now becoming the

source.

A Fair enough.

Q Okay. Well, what did you understand the process to be.

And then tell me how you learned that.

A So I understood that the backups drives that are

now the source, were reviewed for documents subject to the

U.S. Protective Order. And then those files that were not --

those files that were not subject to the Protective Order were

then copied to another drive. And then I believe those other

drives were then copied up to the one terabyte.

Q So, what we have then is the original backup, slash, now

target drives?

A Original backup, now source.

Q Now source. Excuse me. But, originally target. And

there would be more than four or five, am I correct?



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445

A Yes.

Q Okay. And then those, now, source drives -- and we don't

know how many there were -- that's correct?

A Correct.

Q Those source drives were then reviewed to determine

whether or not there was a secret privilege on them.

Am I correct?

A I'm not crystal clear on whether the backup drives were

reviewed for privilege -- for Protective Order, and then the

remaining were copied to a new piece of media. Or if it was

copied to a new piece of media, and then reviewed. But I

believe there to have been a intermediate step before copying

to the terabyte dive.

Q And so --

A But I also -- I also could be incorrect in that there

might not have been an intermediate step, but it may have just

been copied directly from the backup drive directly onto

the --

Q New target?

A The terabyte target.

Q I'm sorry. I apologize. I thought you said that there

were the backup drives, which would have the backup tapes,

which would have been multiple --

A You said tapes, but I know you mean drives.

Q You're right. We used to have tapes. We all know that.



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446

I'm showing my age.

The backup hard drives were multiple, more than four

or five, probably.

A Sure.

Q And then do I understand that those backup, now source

drives --

A To make it easier, why don't we refer to the original

employees' drives as set A; the backup of those would be B.

Q Okay.

A Just to make a flow concept. If the original employees'

are A, and then we back them up, it's B.

Q Okay. So now we have set B?

A Yes.

Q And set B becomes a source for C?

A If they are extracted and copied to an intermediate

set that would be set C. And then those could have been

accumulated into the one terabyte --

Q Okay.

A -- drive, which I'll call set D.

But as I just said, I'm not sure if there was an

immediate step creating set C, or if it just went from A to B,

directly to the terabyte drive.

Q Okay. So let me just -- so then set B is either the four

or five that went into set D, the one Terabyte Drive; or set B

may have been a source for set C?



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447

A Correct.

Q But you don't know whether or not it was or was not a

source for set C?

A Correct.

Q And set B would have dates on it. You don't know whether

it included the date the backup was taken or not, is that

correct?

A Correct.

Q But it would only -- if may have that date, but it also

may just not have that date. It may have just file dates?

A Correct.

Q And then those backups, set B, were then transferred

through a cloning process, or using cloning software, onto

set D?

A That's a possibility that would explain the dates of

files and things on drive D that pre-date the manufacturing

capability of a drive of type D's capabilities.

Q Okay. That's what I'm trying to understand.

But set B would have the date, would it not, that

the back -- that the set B was created?

A No. You just -- you just stated it previously correctly;

that set B may or may not have the date.

Q Well, in order to give a date to set D, it had to have a

date on it, doesn't it?

A Very good. I, I didn't catch that before. But, yes, in



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448

order for set D to have an early date, it would have had to

have come from set B with an early date.

Q And we know that set B drives were taken over a period of

2001, 2002, and 2003, do we not?

A I don't know that, but that sounds right.

Q So the drives in set B --

A Actually, I'm sorry. I understood that Mr. Montgomery

was employed at eTreppid for more years than '01, '02, '03,

through '05 --

Q So then --

A -- and copied backup regularly during that period.

Q So the backup drives, set B, would have data create dates

on the set B of either '99, 2000, 2001, 2002, 2003, would they

not?

A Yes, if all those drives existed. In other words, in

Mr. Montgomery's testimony from yesterday or the day before,

he talked about doing one to two drives, one to two backups

per month per person when Mr. --

Q Okay. I don't recall that testimony, but maybe you do.

A Well, I do.

Q Okay.

A And then there's another gentleman that followed him that

testified and did the math in his head, and he said that means

it must be 50 or 60. That math is incorrect.

Q Well, he was only there from 2002, June, until the end



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449

of 2005, which is two-and-a-half years. And if you go two

times per month --

A From 2002?

Q Right. He said he came on board in 2002. So if I

multiply two-and-a-half times 12 --

A Times two.

Q No.

A Twice a month?

Q Twice a month, excuse me, that's 48.

A 48 months -- or 48. Yes.

Q So then that would be times --

A Two-and-a-half.

Q -- two-and-a-half a month, roughly. So there's almost a

hundred. So, he was a little bit off 50 or 60.

A I'm not being critical of the fact, but it's just the

population was a larger population.

Q Right.

A So, it sounds to me like a hundred backups had been done

over time.

Q All having varying dates on them, correct?

A Yes.

Q All having dates -- forget Glogauer. Let's just talk

about everybody else. From '99 to the present, having varying

dates on the various sets B, did they not?

A Yes.



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450

Q And in the cloning software process, those varying dates

would be carried over, would they not?

A If, if the cloning process preserved CAW, but for the

dates of the drives that made it to the D set, that had the

old dates, then wherever D got its data from, would have had

to have preserved the CAW information.

Q All of those dates?

A Yes.

Q So that would be -- you would expect to see multiple

dates from set B on to the one terabyte drive, would you not,

if you use the cloning software?

A Multiple dates, yes. But I also recall that

Mr. Montgomery said that prior to 2003, there were not

state secret issues.

Q Correct.

A And that he was able to copy more and faster, and needed

less review of the things prior to '03, because there would be

no likely state secret information in there.

So, if the terabyte drive was created from the

pre-'03 information, then I might only expect to see data

pre'-03 on the terabyte drive, and not for all his other

hundreds of backups.

Q But the dates that would be carried over then into the

one terabyte drive, would be dates that would be, say,

pre-2002, as well as 2003, would they not?



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451

A They would be whatever he was copying over that was pre-

the 2003.

Q Well, one thing that we do know from Mr. Karchmer's

testimony, do we not, is that his review of the one terabyte

drive showed that all of the create dates of the set B were

November 2003, correct?

A Is that from Exhibit 48 or 49?

Q 48, and his testimony.

A Can I see 48 or 49?

Q Absolutely.

THE WITNESS: Thank you.

THE CLERK: You're welcome.

THE WITNESS: (Witness reviews document.)

BY MR. PEEK:

Q Can you answer my question now?

A I can. Unfortunately, you've misstated his testimony in

this exhibit. This exhibit says that the folder create dates

were in 2003.

Q Well, do those folder create dates come from the cloning

software?

A Not necessarily.

Q Well, you were using as an explanation why the, why there

was not a manipulation, in your judgment, or what explanation

there would be for that. Is that the sequential dates of all

of the folder create dates shown on the one terabyte, could



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452

have come from the set B create dates?

A So there's, there's certainly nothing here about file

create dates. There is only folder create dates.

And you're right, for these dates to have been

there, it would have come from cloning. However, it makes

sense now. My comment was going to be that these folder names

of 2003 and 2004 look to be somebody who's trying to organize

files. But since these came from backups, it's possible that

set B was made by creating a folder called 2003. It was

backed up in 2003.

Q But we know that it comes from backup tapes of 1999, all

the way through 2003 though, don't we?

A But because the --

Q Don't we know that?

A But because the folder preceding the 2003 is the Word

backup, it's not common for a backup folder to exist on a

source piece of media. So, I'm now assuming, because I don't

know when the backups were made of the employees over time. I

don't know the mechanism or tool used. And I don't know if

when the backup of a source person in set A was made, if it

was just backed up onto the root folder of a B drive, or if a

B drive was given a manual folder called 2003, and then every

time a backup was done, in 2003, it was put into that folder.

Q But you --

A I don't know.



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453

Q You don't know any of that information, do you?

A I do not. And it's not here also.

Q Well, we know from his testimony --

A I'm sorry his? Who?

Q Mr. Karchmer's testimony.

A Thank you.

Q That all of the folders had the dates of 11-18-2003.

A Okay.

Q We know that. Why wouldn't you expect to see varying

dates that set B in the cloning process would have imprinted

and then carried over into set D?

A I'm sorry, ask your question again.

Q Why wouldn't you expect, since we know that all of the

dates on the one terabyte hard drive are 11-18-2003 --

A I'm sorry. You're misstating. You said all the dates.

All these --

Q The folder dates.

A Yes.

Q All the folder create dates.

A Just these four folders.

Q Well, he testified that all of the folders had dates

beginning 11-18-03, and continuing. That's what his testimony

was.

A I don't recall that being his testimony, every single

folder. I just don't. We can look at the record and we would



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454

know if he said it. But this --

Q Well, let me ask you to assume then for a moment --

A Okay.

Q -- for purposes of my question.

A Okay.

THE CLERK: Excuse me, Mr. Peek. Seven minutes.

MR. PEEK: I know.

BY MR. PEEK:

Q All of the folders had create dates of 11-18-2003,

sequentially beginning at 4:58 until, ending on 4:58 a.m. on

the 18th, and then ending on the finishing date, finish time

of 11:18:22, 11:00 or 10:00, 11:00 at night.

A I can assume that.

Q Okay. Would that then -- wouldn't you expect to see

varying dates in that process, if cloning software was used?

A Perhaps. I'm confused because I see a subfolder dated

2005. And it has a date of 2003.

Q Those are the dates that the creator gave to the

subfolder, or gave it a date, or gave it a subfolder name

of 2003, a subfolder name of 2004, and a subfolder name of

2005, if you remember Mr. Karchmer's testimony.

But each of the files within that folder, as they

were created, all bear the date of 11-18-2003?

A All files or all folders?

Q Well, there were really no folders. They were just all



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455

files. All of the files had dates of 11-18-2003. And all of

the folders had dates of 11-18-2003 -- excuse me. Files

probably had the dates they were created, but I'm talking

about all of the folders?

A I'm lost. I'm sorry.

Q So am I, because I don't understand how you can reach

a conclusion that there wouldn't be varying dates in the

terabyte drive showing a date other than 11-18-2003. I mean,

the files we know would have had a date of when -- if they

contained all of the metadata. But, frankly, I haven't looked

myself at all 1.3 million files. But the date, you were

saying the 11-18-2003 date is easily explicable because it

would have come through the cloning process. And I'm just

trying to understand why it would all have the same date, if

the set B, all themselves had varying dates?

A Assuming that set B all had varying dates and they were

cloned preserving CAW, I don't know how this -- I don't

understand. I would like --

Q Unless they were manipulated?

A Well, I'm not going to jump to that conclusion.

Q Well, the date of the folder create date, where it's

going to get that date, which is the hard drive, the one

terabyte drive, picked a date of 11-18-2003, how did it get

that date on format?

A It would certainly be helpful if I could look at the full



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456

set of data.

Q Well, sir, you haven't done that, have you?

A I have not.

Q And you've been put up here on the witness stand,

offering opinions about, explanations, without having

investigated the source from which these dates came?

A The topics that I was asked to opine by about was not

this topic.

Q The topic was you were explaining why the dates were not

manipulated, and there's an explanation for the dates having

come through a source of cloning software. So how would it

get -- how would the one terabyte drive, when it's inserted

into the machine get a date, 11-18-2003, the format date?

A All I said was that Mr. Karchmer's explanation might not

be right. There's another scenario. I -- I'm, um, I'm happy

to give you thoughts on the topic as I sit here.

Q I'm not -- I only have about six minutes left, so -- I

apologize.

Let's talk a little bit about your testimony that

the, in the de-duping process, or in the review process, did

you understand that Mr. Montgomery created this or reviewed

the set B data to the determine the State Secret Privilege?

A To the extent that set B was after 2003.

Q Correct.

A But I'm not sure how much he reviewed for state secret



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457

before 2003.

Q But it's your understanding what whatever he reviewed

came out of set B, correct?

A I believe so.

Q Okay. And set B -- well, I'll move on.

Have you looked at the Glogauer PST file that's been

reviewed or been produced here?

A No.

Q Okay. And I know you haven't looked at the terabyte

drive, so you don't know how many photographs related to

dogs and family parties and the like are duplicated, do you?

A No.

Q And you don't know how many actual word documents or

HTML messages were actually duplicated, do you?

A No.

Q And you don't know whether any of those HTML messages

that are there are just like, for example, little strips of

information that came off of a browsing on the web?

A No. Other than Mr. Karchmer testified, and you talked

about, that it's 92 percent.

Q And so would you expect temporary internet files coming

off of the computer to be responsive to the request for

production of white papers, correspondence related to the

sale, or potential sale to potential customers of the Source

Code?



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458

A I can't address if something is responsive. I don't know

what the content of the files are, and what the issues are

that make something responsive or relevant.

Q So, you don't know whether --

A But, I can also tell you that in the form of the drives

that Mr. Montgomery had, he wouldn't have known what are

duplicates. Which is another --

Q We're going to go into that.

You were available, certainly, as an expert to the

Liner firm in January 2008, were you not?

A Yes.

Q You were available in -- from January, all the way

through today, were you not?

A (No response.)

Q And the ability to consult with you on how to run

deduplicating processes was available to Mr. Montgomery just

through a phone call?

A You're assuming that he knew to ask the question.

Q Okay. Or that somebody at the firm, the Liner firm, knew

to ask the question.

A Yes.

Q And you could have given him that information of how to

de-dupe, through either one form of hash -- I think you said

there were two forms of hashing -- you could have given that

information to do that, could you not, over the phone, or you



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459

could have sat and met with him, one way or the other.

You could have done that, could you not?

A Assuming that it was appropriate to de-dupe the files to

go through his review and production process.

Q Well, that's because you don't know whether the review

was conducted on the set B. If the review had been conducted

on set B, then we would know that set D has no State Secret

Privilege on it, don't we? You said that he was reviewing set

B for State Secret Privilege, did you not?

A I said I believe that's the case.

Q Okay. So when he gets to set D, which is what was

produced, there's really no problem in you actually consulting

with him and doing the de-duping process, is there?

A If he wanted to ask.

Q All right. But my point is you could have done that

de-duping process because set B had already been screened, and

had been transferred, had been put onto the new target, set D,

had it not?

A Uh -- so, yes, in theory, I could have helped with the

de-duping when it get to set D. However, as I testified

yesterday, as a forensic person, it is often, depending on the

situation, it is often desirable to have the full set of

situation, including dupes. And I gave an example of a copy

document to know that who saw it and when.

Q But you could have expedited the process by giving him



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460

de-duping ability, number one, correct, on set D, which has

now been reviewed for State Secrets Privilege?

A Yes.

Q And you could have also given him forensic tools of

searching that for other word searches as well, could you not,

that would have been faster than Word, and that would not have

crashed, correct?

A Well, once it got to the D set --

Q Correct?

A Sure. But, at that point, he's already done the work.

Q Okay. And you also know that there was no State Secrets

Privilege in his testimony prior to 2003, correct?

A Correct.

Q Do you know how many files of the 1.3 million files are

from 2003?

A I do not.

Q So you can't offer an opinion as to what work effort

would have been taken to review 2003?

A Correct.

Q And you could have also given him the de-duping process

information for set B as well, could you not?

A Well, at that point, I don't think so, because I believe

that the Protective Order and instructions for him was to not

seek assistance.

Q You could have given him -- you could have sat down and



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461

said these are the algorithms you can run on set B to assist

you in eliminating duplicates, correct?

A If he was allowed to ask for that help, and if he knew to

ask for that help, I could have done that, yes.

Q Did you see anything in the Protective Order that said he

couldn't ask for help in, at least, obtaining algorithms and

the like?

A My recollection of the order was that there was language

about not seeking assistance, but I don't remember the

following clause.

Q I don't think it's there, but it's assistance in

reviewing, not assistance in the de-duping process, because

you're not looking at anything, correct? You're not looking

at anything in the de-duping process, are you, to give him

the algorithms?

A Depending on what tool you use, you do see content. To

go through, to go through a de-dupe in the way I would go

through a dedupe, it would forensically image the media. I

would then throw into NCASE, which I would use, run hash

values, and Sig analysis. But as part of that process, there

is the preview field which shows a couple hundred characters

or a hundred and something characters of content --

Q The actual content?

A Actual content of every file.

Q And so you're saying you couldn't have given him the



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462

algorithms tool then, without looking at content, is that your

testimony?

A What I said was, in theory, I could talk him through what

tools to use.

Q Correct.

A But if I were to help him do that, I would wind up seeing

content.

THE COURT: Your time is up, sir.

Thank you.

Redirect.

REDIRECT EXAMINATION

BY MS. GAROFALO:

Q Good morning, Mr. Cooper.

Good morning. Very few follow-up questions.

Do you know of any reason why you were not asked to

assist Mr. Montgomery in de-duping the files, reviewing the

materials and so forth?

A No.

Q Okay. Are you privy to your firm FDI's billing

procedures?

A Yes.

Q Are you aware of the fact that Mr. Montgomery has a

fairly substantial receipt with FDI?

A Yes.

MR. PEEK: Excuse me. Is this now a new dog ate



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463

my homework excuse again?

This wasn't gone into. Now it's I don't have the

money. It's now I don't have the time. It's always something

different. Now it's an account receivable; he wasn't being

paid.


MR. PEEK: That's not an excuse either,

Your Honor.

THE COURT: Ms. Garofalo.

MS. GAROFALO: Your Honor --

THE COURT: Well, I'm going to overrule

the objection because the question during the course of

Mr. Cooper's testimony has arisen concerning the fact that

he was certainly retained in January of 2008 for the purpose

of providing a declaration with respect to the motion

pertaining to the Glogauer e-mail, and the question had

arisen about his retention for this hearing. So, I'll allow

questions on that issue.

MS. GAROFALO: I have very few questions,

Your Honor. Thank you.

BY MS. GAROFALO:

Q Are you aware of FDI's policy with respect to

providing services to a client where there is an outstanding

receivable?

A Yes.



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464

Q And what is that policy?

A That -- I believe the language is FDI reserves the right

to withdraw, or cease providing services, if an outstanding

balance is in excess of 15 or 30 days, and there's been no

agreement or conversation solving that.

Q And do you, as you sit here today, know whether or not

FDI actually declined to provide services to Mr. Montgomery?

A To my knowledge, FDI did not decline to provide the

services.

Q Do you know whether FDI declined, or is that just

speculation?

A I don't know if the accounting department provided

notice. I did not.

Q All right. Thank you.

MS. GAROFALO: I have no further questions.

THE COURT: Anything on re-cross, sir?

MR. PEEK: I have nothing further, Your Honor.

THE COURT: All right. Thank you.

Thank you, sir. You may step down.

THE WITNESS: Thank you, Your Honor.

THE COURT: Ms. Garofalo, do you have any other

witnesses to call?

MS. GAROFALO: We do not, Your Honor.


All right. What we are going to do, is I have the



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465

Grand Jury coming in.

Miss Clerk, are we going to do that in

Judge McQuaid's courtroom?

THE CLERK: I think we can, if you'd like.

THE COURT: Anyway, I'm the criminal duty judge,

and so I have to take the Grand Jury returns. And they're

ready to convene.

But one of the housekeeping matters that I wish to

address is the one we were discussing before Mr. Montgomery

returned from his other business. And that is, in closing

argument, the discussion had among counsel, in his absence,

about who ought to go first. The issue arose that, although

this is an Order to Show Cause for the Montgomery parties

concerning this Court's order, what occurred in the chronology

of the testimony is Ms. Klar, at the first hearing, did,

initially, after the Court finished its questioning of

Mr. Montgomery, Ms. Klar asked Mr. Montgomery questions under

oath, and then Mr. Peek proceeded to cross-examine

Mr. Montgomery at some length, as we know.

And then it should have been the Montgomery

parties' burden to go ahead and proceed with any witnesses

they wished to call. Instead, Mr. Karchmer was called, and

other witnesses on behalf of eTreppid.

So the issue now is, one, counsel for eTreppid

has expressed the view that if the Montgomery parties wish



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466

Mr. Peek to go first, and allow Montgomery parties to speak,

then he will rebut. He's amenable to that. But, he does not

wish to create any issue on appeal concerning the order of

closing. And he said if Mr. Montgomery is amenable to waiving

that, he'll go first. If not, Ms. Garofalo on behalf --

Garofalo. Excuse me -- on behalf of Mr. Montgomery can go

first. And she wanted Mr. Montgomery to be here, which was

fine, of course, with the Court.

Ms. Garofalo, what's your position?

MS. GAROFALO: Well, Your Honor, I, upon further

reflection, after looking at the documents, I was reminded

that what happened here is that there was a motion filed by

the eTreppid parties. So, in effect, they were the moving

parties. The Court then construed it as an OSC re: Contempt,

is what I think may have caused some confusion as to the order

or burden. Notwithstanding any of those issues, we will waive

any objection simply to the order in which closing argument is

given. We'll reserve all other rights.

I'm not sure that there is any further objection,

but it certainly is an issue I would like to look at more

closely, should it become an issue.

THE COURT: So, I'm so not sure --

MR. PEEK: I don't know --

THE COURT: I'm not sure that means, well, I

waive it, but maybe not.



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467

MS. GAROFALO: We'll not --

THE COURT: In other words, what I'm interested

in knowing is, if you want to proceed first in closing

arguments, you certainly may do that.

So, do you wish to do that?

MS. GAROFALO: I -- given the way that the

proceeding has gone, we are agreeable to having Mr. Peek

go first for closing argument. We will not object

or collaterally attack the order of closing argument.


Mr. Peek.

MR. PEEK: I am fine with that, Your Honor.

But, certainly, what I'm -- the hint I see in that is sort

of the, I reserve the right to say that you have the burden

and not me. And what I want to make sure of is that -- and

certainly she and I may not agree on who has the burden.

It's my understanding that once I've made my prima facie

showing by a motion, I have carried my burden. And then the

Court issues its Order to Show Cause based upon a finding that

there has been a showing that, you know, he should be called

forward to show cause why he should not be held in contempt.

It is his burden then. And they would have the right to go

first and last because they carry that burden.

If they want to concede to me that I can go first

and last, I'm okay with that.



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Montgomery v eTreppid # 835 | Aug 20 Doc OSC Hearing Transcript | d.nev. 3-06-Cv-00056 835...

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Transcript of Montgomery v eTreppid # 835 | Aug 20 Doc OSC Hearing Transcript | d.nev. 3-06-Cv-00056 835...