Flynn v DM Bankr # 105 | Montgomery Declaration 2-10-ap-01305-BB_105

8/20/2019 Flynn v DM Bankr # 105 | Montgomery Declaration 2-10-ap-01305-BB_105

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Case 2:10-ap-01305-BB Doc 105 Filed 11/15/11 Entered 11/15/11 15:43:58 Desc Main Document Page 1 of 7


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1

DECLARATION

OF DENNIS

MONTGOMERY

2 I, Dennis Montgomery , hereby declare as follows:

3

1

2.

I am

over

18 years of age and a Defendant in the above-entitled action.

I

have

personal knowledge

of

the facts

set

forth

below

and,

if

called to testify, I

5 could

and would

testify competently thereto.

6

3.

I

have

asserted my Fifth

Amendment

privilege

not

to testify

on

certain issues,

7 only

because

I

was informed

by my counsel that Mr.

Flynn

stated

that

the U.S. Attorney in

8

Montana

was investigating

me

for reasons unknown,

and that

a

grand jury

indictment was

9 likely.

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4.

I have heard nothing from any government official

on

this, and now believe it

was a lie perpetrated by Mr. Flynn to prevent me from being able to adequately defend myself.

I will

now

testify on the matters relevant to this adversa1y proceeding without asserting the

Fifth Amendment, except as to matters involving casino-related proceedings in Las Vegas,

Nevada, and given the constraints of the United States Protective Order ( US Protective

Order ), a true

and

correct copy of which is attached hereto as Exhibit A and incorporated

herein

by

reference.

5. I

have never

hidden assets from the

bankruptcy

trustee.

6

7

I did my

best

to properly value all assets in my bankruptcy petition.

I cannot reveal the source of the valuation

of

the

software technology identified

20 in my petition without violating the US Protective Order. I did

not

determine the value, I was

21

told this was the value. I, after consulting with my bankruptcy counsel, determined to place the

22 highest value on the technology of which I was aware in order to fully disclose the actual or

23 potential value of my assets, in order to avoid being accused

of

undervaluing what I have

24 always

believed

to

be

a valuable asset.

25

8

I

have never

tried to sell, transfer, conceal or destroy,

or

sold, transferred,

26 concealed or destroyed

an

asset of the bankruptcy estate.

27

9.

I

have tried

to sell software

or

concepts of software

that

I developed after I filed

28 bankruptcy,

in

order to tiy to earn a living. Postpetition, I

have

been working

on

a portable

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1 biomedical recorder , the PBR. The PBR collects various biomedical information such as

2 EKG

and

Oximetry data and transmits the data to a central monitoring site.

3 10.

In each instance that I have approached a prospective employer or investor, I

4

have

learned

that

Mr.

Flynn, or his associates has contacted

them

and told

them

whatever I

5 would develop would not work, that I was a cheat, a fraud and a liar. As a result, I have been

6 unable to obtain significant employment or earn significant income since filing bankrnptcy.

7 11.

The

software teclmology

used by

Demaratech is different from the technology I

8 identified in my petition.

9 12.

In October 2011 I suffered a

mini

stroke. I also suffer from a brain aneurism.

10 I

am

currently

under

a neurosurgeon and other doctor's care. I

am

undergoing testing and

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treatment.

13.

The

words It has a value of more than Five Hundred Million Dollars was

making reference to technologies more than just the ODS. Any further disclosure

may

violate

the US Protective Order.

14. As to many of the alleged facts, it

would

require disclosure of the use, customers

or application of the ODS technology that

may

violate the U.S. Protective Order.

In

each

instance where this is true,

in

the Statement of Genuine Issues it is stated:

I t

is my

18 understanding that disclosing certain aspects regarding the use, customers,

and

application of

19 the ODS technology may violate the US Protective Order.

20

15.

Some

time before the bankruptcy was filed, I delivered the teclmology to

my

2 prior counsel, Liner Yankelvitz ( Liner ). To the

best

of my knowledge, the U.S. government

22 is

in

possession of the software technology.

They

took,

and

currently

have

possession of,

23 several

hard

drives,

CDs and

documents from Liner. Mr.

Flynn

is aware of this. A true and

24 correct copy of

an email

I received from Mr. Eisenberg, my bankruptcy counsel,

with

25 attachments, is

attached

hereto as Exhibit

B and

incorporated herein

by

reference. This

26 document shows that the U.S. Government took certain files, CDs and hard drives from Liner,

27 this is only a partia l list.

f

he government did not take it, I understand that it may also be in

28 storage maintained by the Chapter 7 Trustee. I have not reviewed what is in the possession

of

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PETER D. KEISLER Assistant Attorney GeneralSTEVEN W. MYHREActing United States AttorneyDistrict of NevadaGREG ADDINGTON

Assistant United States Attorney Nevada Bar 6875100 West Liberty, Suite 600Reno, Nevada 89501VINCENT M. GARVEYDeputy Branch Director CARLOTTA P. WELLSSenior Trial CounselFederal Programs BranchCivil Division - Room 7150U.S. Department of Justice20 Massachusetts Ave., NW/P.O. Box 883Washington, D.C. 20044

Telephone: (202)514-4522Facsimile: (202) 616-8470

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

DENNIS MONTGOMERY, et al., )

)Plaintiffs, )

) 3:06-CV-00056-PMP-VPCv. ) BASE FILE

)

ETREPPID TECHNOLOGIES, INC., ) 3:06-CV-00145-PMP-VPCet al., ))

Defendants. ) ____________________________________)

UNITED STATES’ REVISED PROPOSED PROTECTIVE ORDER

Pursuant to Federal Rule of Civil Procedure 26, in order to protect the classification,

confidentiality and the rights to information and documents developed and disclosed in

connection with this litigation, and to facilitate discovery by and among the parties to this

action and from third parties, the United States hereby proposes entry of the following

protective order.

Case 3:06-cv-00056-PMP-VPC Document 196 Filed 06/21/2007 Page 4 of 8

______________UNITED STATES

Case 3:06-cv-00056-PMP-VPC Document 253 Filed 08/29/2007 Page 1 of 5Case 2:10-ap-01305-BB Doc 105-1 Filed 11/15/11 Entered 11/15/11 15:43:58 Desc Exhibit A Page 1 of 5


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IT IS HEREBY ORDERED as follows:

1. Certain information that may or may not be relevant to the claims and/or

defenses of eTreppid Technologies, LLC and its current or former officers or employees

(hereinafter collectively referred to as “eTreppid”), Warren Trepp, Dennis Montgomery, the

Montgomery Family Trust and/or Dennis Montgomery and Brenda Montgomery as trustees of

the Montgomery Family Trust (hereinafter collectively referred to as “the Parties”), as

delineated in paragraphs 2 and 3 below, is subject to the state secrets privilege, the disclosure

of which reasonably could be expected to cause serious, and in some cases exceptionally

grave, damage to the national security of the United States. Such information shall not be

subject to discovery or disclosure by any of the Parties during all proceedings in these actions,

and shall be excluded from evidence at trial.

2. The Parties shall not serve or take any discovery relating to or questioning the

existence or non-existence of any actual or proposed relationship, agreement, connection,

contract, transaction, communication or meeting of any kind between any entity in the

intelligence community as defined by the National Security Act of 1947,

50 U.S.C. § 401(a)(4), which includes intelligence elements of the military services, or any

current or former official, employee or representative thereof (hereinafter collectively referred

to as “intelligence agency”) and the Parties.

3. The Parties shall not serve or take any discovery relating to or questioning any

actual or proposed intelligence agency interest in, application of or use of any technology,

software or source code owned or claimed by the Parties.

4. This Order does not preclude the Parties from serving or taking any discovery

from other Parties or third parties relating to, or questioning, the following:

Case 3:06-cv-00056-PMP-VPC Document 196 Filed 06/21/2007 Page 5 of 8Case 3:06-cv-00056-PMP-VPC Document 253 Filed 08/29/2007 Page 2 of 5Case 2:10-ap-01305-BB Doc 105-1 Filed 11/15/11 Entered 11/15/11 15:43:58 Desc Exhibit A Page 2 of 5


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a. The existence and nature of the “Big Safari” contract (hereinafter referred to as

“the Big Safari Contract”) between eTreppid and the Unites States Air Force, including but not

limited to the fact that the Big Safari Contract required eTreppid to perform data analysis and

the fact that the data analysis eTreppid performed under the Big Safari Contract involved

image identification technology;

b. The fact that the Big Safari Contract required employees and/or officers of

eTreppid to sign secrecy agreements with the Department of Defense;

c. The computer source code, software, programs, or technical specifications

relating to any technology owned or claimed by any of the Parties (“the Technology”);

d. Any contract, relationship, agreement, connection, transaction, communication

or meeting of any kind relating to the Technology, unless covered by paragraphs 2 or 3 above;

e. Any actual or potential commercial or government applications of the

Technology, unless covered by paragraphs 2 or 3 above;

f. Facts relating to the issue of ownership by the Parties of any right or interest in

the Technology, unless covered by paragraphs 2 or 3 above;

g. The revenue, income, expenses, profits and losses of the Parties, unless

disclosure of such information would be covered by paragraphs 2 or 3 above; and

h. Any consideration received by any of the Parties relating to the Technology,

unless covered by paragraphs 2 or 3 above.

5. The Parties shall not discuss, mention, question or introduce as evidence, either

at trial, in any pleading or motion, or in any case-related correspondence, any actual or

proposed relationship, agreement, connection, contract, transaction, communication or

meeting of any kind between any intelligence agency and any of the Parties.



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6. The Parties shall not discuss, mention, question or introduce as evidence, either

at trial, in any pleading or motion, or in any case-related correspondence, any actual or

proposed intelligence agency interest in, application of or use of the Technology.

7. No question and no document request in discovery or at trial shall require a

response that would include any information covered by paragraphs 2, 3, 5 or 6 above, but if

the responding party believes that a full and complete response could disclose information

within the scope of the state secrets privilege, the responding party shall provide timely notice

of such belief and the full and complete response to the United States prior to responding, and

shall respond only with information that the United States has determined is not subject to the

state secrets privilege.

8. The military and state secrets privilege, the claim that any discovery is

covered by paragraphs 2 or 3 above, and the claim that any evidence is covered by

paragraphs 2 or 3 above, can only be invoked by the United States. These claims cannot be

asserted by a private individual or entity.

9. All Parties shall serve the attorneys for the United States with (a) a copy of

all notices of depositions, (b) a copy of all requests for discovery and responses thereto,

and (c) a copy of all pleadings and motions filed together with supporting memoranda

(hereinafter collectively referred to as the “documents”), unless such documents request or

relate to information covered by paragraphs 2 or 3 above. If the documents request or

relate to information covered by paragraphs 2 or 3 above, the Parties shall submit the

documents to the United States for privilege review prior to service or filing. All

documents filed or sought to be used as evidence by the Parties in this case shall be

unclassified. This requirement applies to all motions, pleadings, briefs, and any other

document, including exhibits, correspondence, or anything appended thereto or filed

therewith. If the United States determines that a document or discovery response includes



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information covered by paragraphs 2 or 3 above, the United States shall redact the

information and provide the parties and Court with a redacted copy of the document or

discovery response.

10. The Clerk of the Court shall send attorneys for the United States a copy of all

future decisions and notices for hearings in these cases.

11. As the United States deems necessary, attorneys for the United States may

attend all depositions and proceedings in this case and may make objections as necessary to

protect national security information. If attorneys for the United States assert an objection

based on the need to protect national security information with respect to either witness

testimony or documents introduced or otherwise relied upon during a deposition, then the

witness shall be precluded from testifying with respect to the line of inquiry that engendered

the objection, and the document shall be withdrawn from the record pending an order of the

Court with respect to the scope of the government’s national security objection.

12. To protect the United States’ interests, attorneys for the United States may

participate in any proceeding in these cases, including but not limited to motions hearings, all

pre-trial proceedings, or trial by making and opposing motions, submitting briefs, and

participating in arguments.

13. The United States shall be excepted from all party discovery during the

pendency of its motions to dismiss the claims against the Department of Defense.

It is so ordered.

Dated:

United States District Judge

Case 3:06-cv-00056-PMP-VPC Document 196 Filed 06/21/2007 Page 8 of 8

August 29, 2007

_______________________________

PHILIP M. PRO

United States District Judge

Case 3:06-cv-00056-PMP-VPC Document 253 Filed 08/29/2007 Page 5 of 5Case 2:10-ap-01305-BB Doc 105-1 Filed 11/15/11 Entered 11/15/11 15:43:58 Desc Exhibit A Page 5 of 5


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Case 2:10-ap-01305-BB Doc 105-2 Filed 11/15/11 Entered 11/15/11 15:43:58 Desc Exhibit B Page 1 of 27

Liner

Liner Hard

Liner

CD

Inventory.l /e Inventory.pdntory.pdf (87 K

Message-----

Joseph [mailto:[email protected]]

PM

FW:

Review

of

former

counsel files at Liner firm

by

United States

Message-----

PM

S

Garofalo; Kathleen Goldberg; Eisenberg, Joseph; Michael Flynn

M

(CIV)

of former

counsel files at Liner firm by United States

United States has conducted an initial review of the 210

of

former counsel files at the Liner firm. All 210 boxes of materials, minus the

and media pulled

for

further security review, require no further review by the

States.

an inventory of the hard copies, hard dr ives, and CD s/DVD s that have

boxes 101

through

210 (please note that the first 100 boxes were discovery

by eTreppid to Montgomery in the eTreppid case and were released by the United

in late January 2010).

will forward a projected date for completion

of

the review

of

the pulled hard copies, hard

ves and CD s/DVD s.

f

you have any questions, please email or call.

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Flynn v DM Bankr # 105 | Montgomery Declaration 2-10-ap-01305-BB_105

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