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Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 1 of 207

M ONTG OM ERY v.ETREPPID, DEPT OF DEFENSE


Case No.CV-N -06-056
SEA LED TR AN SCIUPT OF HEARING ON
PRELIM INARY LNJIJNCTION DATED 2-7-2006

(VOLU VIE 11OF11),IN 2NDJtyolctAl-DISTRICT COURT


OF NEVZYD A, COIJNTY OF W ASHOE,
CASE NO .CV06-()0l14, DEPT.9

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Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 2 of 207


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SECOND JUDICIAL DISTRICT COURT O THE TATE OF NEVADA
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(EN ANJI l?OR THE COIJNTY OF WASHOE


BEFORE THE HONORABLE ROBERT H . PERRY, DISTRICT JUDGE

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ETREPPID TECH.7OLOG IES r t..L .C ., a


Nevada Limited
Lialility Company,
Pl1irttiff#
Case No . CV0 6-0Ol 14
V5 .

Dep t . No . 9

DENNIS MONTGOMERY, an individual;


THE HONTGOM ERY FAM ILY TRU SX ;
DENNIS MONTGOMERY and BRENDA
MONTGOMERY, a1s trustees for G'HE
MONTGOMERY FN 4ILY Z'RUST, and
DOEG 1 through 20,

Defendants .

/
S E A L E D
VOLUME 11 of 11
TRKNSCRIPT OF PROCEEDINGS
HEARING - PRELIM INARY INJUNCTION

Tuesday, February 7, 2006


RENO, NEVADA

Reported By: CECILIA VOHL: NV CCR #246, RPR, CRR, CCP


l

CECILIA Fa/l, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 3 of 207

y/ P P E A R A N C E S

For the P kainti.ff:


3

IIALEZ LANE, PEEK , DENNISON


AN D HOWAR D

E!Y : STEPHEN J . PEEK, ESQUIRE


M d JERRY M . SNYDER, ESQU TRE
5441 Kietzke Lane; Second Floor
Reno , Nevada 89511
M d

4
5
6

PILLSBURY W INTHRO P SHA W P ITTM AN

RY : DAVTD A . JAKOPIN, ESQUIRE


7

2475 Hanover Street


Palo A lto, Calj. fornia 94304- l114

For the Defenl


:iants :

12

LAW OFFICES OF LOGAR & PULW R , A PC


BY : RONM D J . LOGAR, ESQU IRE
M d ERIC A . PULVER, ESQU IRE
2 25 S;. Arlington Avenue r Sui te A
Reno, Nevada 89501
An d
FLYNN & ST lLLMRN
BY : M ICHA EL J . FLYNN, ESQUIRE

13

And PHILIP H . ST ILLMAN, ESQUIRE


224 Birmingham Drive

14

Suite lA4
Cardi ff , California 92007

9
10
l1

15

-000 -

16
17
18

19
20

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CFCTJ/TJI %DIjL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 4 of 207

1 N D F )g
.

WITNESS FOR !qjr PLAII


jLEJ'
.j(

WARREN TREPP

PAGE

Direct Examination (Continued) by Mr. Jakopin

Cross-Examination by Mr . F'lynn
Redirect Examinat kon by Mr . Jakopin

36
109

WITNESSES F()R THE EIJON NTIFF

PAGE

..

DENN IS L . M ON '
PGOMERY

Direct Examination by Mr . Flynn

111

Cross-Examination by M z-. Peek

203

8
E X 11 I B I T S;
9
DES IGNA TTON

MA RKE D A DM ITI'ED

10
Plaintiff fs Kxhibtt 8

27

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Plaintiff 1s Exhib it 9

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Plaintiff 's Kxhibit l0

34

36

Plainti ff s Kxhibit 12.

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Plaintiff 1s Zxhib it 12

35

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Plaintiff 's Zxhibi1: 13

35

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Plaintiff 's 'Zxhibit 14

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Plaintiff 's Zxhibit 15

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Plaintiff 1s Exhibit 16

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Plaintiff 's Exhibit 17

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De fendant 's Exhibit 18

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De fendant #s Exhibit 19

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Defendant 's Exhibit 20

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120

Defendant 's Exhibit 2 l

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CLICILIA VOHL r NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 5 of 207

; : D E X (CONTINURD)

4XH IB IT4

DES IGNATION

MJGAKED ADM ITTED

De fendant 's Kxhib lt 22

156

156

Plaintift 1s Kxhib i.t 23

216

2 18

Plaint iff 1s '


Zxhib tt. 24

2 25

2 33

Plainti ff 's 'Zxhib.


tt 25

2 32

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000 -

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l0

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12

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CkICILIA V()Sf,, NV CCR #246 (775) 827-6672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 6 of 207


.
.. I

RENO, IAJEVADA, T'UFSDAY: FEBRUARY 7 , 2O0 6, 3 :25 P . M .

-000 -

THE COURT :

liltlase be seated . Go ahead .

DIREC'r EXAMINAT ION (CONTINUED)

BY MR . JAKOPIN :

Q.

Thank you . Mr . Trepp, could you talk a l ittle bit

10

about, from the format:ion ot the business in 1998w activities

11

that the company dtd t.o sort of grow the business .

12

A.

As I said berore : we basically started out as an R&D

13

development company . 'Et. took us, 1 'd say, at least a year and

14

a half to two years or developing before we could actually get

15

into a quasi-zonmterciial mode where we could actually start

16

giving demons trations 01' putting together a Powerpoint or

17

something of Lhat ilk, but we started showing commercial

18

customers the type of business that we potentially were trying

19

to sel1 .

20

The first contract that we were able to secure after

21

an awfu l long time of negotiatkons was w ith General Ekectric

22

Company, and that was for a surveillance system which we built .

23

They were interested in it and asked us to do dramatic changes

24

or upgrades t.o the system that we originally builtw which they .


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CECILIA VOHLr NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 7 of 207

eventually licensed from us to use in Lheir lnterlogic company,

which was their surveitlance company.

3
4

Other than GE , were there other companies to whom

presentations were made?

A.

Absolutely. Quite a few . lntel was one, which we had

gone over a1l of the d tfrerent -- or some of the different

potential applications that we could offer to them for their

u se .

Los Angeles, Crest International, whlch was a company which

10

11
12

Ko dak wa s ano th er .

Th ere was a comp an y b ased ou t o f

related to Hollywood post-production business, and others .

Q.

Were there meetings that you had with peop le from each

of the companes that you mentioned?

13

A.

Absolutely .

14

Q.

And Were b0th you and Mr. Montgomery involved in those

15

meetings?

16

A.

Absolutely .

17

Q.

During those D.eetings, did you give any of the

18

p rototypes that you h ad ta lked about b e fo re to show these

19

companies what, you could do?

20
.

Q.

A.

We would -- Dennis never wanted to leave any of what

21

we were doing with any of the companies . But what we would do

22

i.s , we would dtgree in advance to create a test protocol where

23

we could aqrei, to show exactly what we were trying to

24

demonstrate t() use as a tool to eventually sell the product to


6

CECILIA M5S=, NV CcR #246 (775) 82 7-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 8 of 207


4mx

we

whatever that company might have been .

Q.

And i
Rt that meetingz were test protocols shown?

A.

i belg your pa rdon?

Q.

At those meet ings z were those test protocols shown?

A.

Yes . M d therL we would leave literaturez a Powerpoint

or something, relating to whatever their speci fic des ire would

be .

8
9
10

Q.

So# then f'rom the GE deal that the company had, how

did the compally sort of progress from there?


A.

Durillg the GE processr we -- I had a relationship with

11

the managemenlr at M GM in Las Vegas, and we asked if we could

12

use the surve:.llance rooms in the MGM .

13

cameras# obvitlusly: it would be a good demonstration place .

Having abotlt 5,000

14

We pllt in -- I don 't know the number of computers , but

15

it was a largi! number of computers to do video capture . And at

16

the same time/ we tested and demonstrated to other entities our

17

ability to do pattern recognition while at the MGM .

18

Q.

Whtcdl entities are you referring to?

19

A.

DOD lleople ; also people from Compaq .

20

Q.

Did l'
-here come a time when your relationship with the

21

22

DOD people wert to another level?

A.

Yes . We had clone a nllmloer of different

23

demonstrationi;. The A ir Force particularly was extremely

24

interested in doing work relating to our ab ility to capture and


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CECILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 9 of 207

deliver video transm Lssions from predator or unmanned vehicle

aircrafts down to wherever they needed to geL Lo .

3
4
5

Q.

Did you have -- froa that interest to that -- did that

go anywhere?
A.

Yes, we were able to show the DOD, as well, a number

of demonstratj-ons that would relate to our ability to do

pattern detection or ATR, automatic tracking and recognition .

8
9

Q.

Department of Defense?

10

11

And ''DODH in your last few answers, you meant

MR. FLYNN :

Your Honor: could we have some timelines?

I thin k it would be a little helpful.

12

THE COURT :

13

put this in context .

14

BY MR . JAKOPIN :

15

Q.

16

Mr . Trepp?

17

A.

Yes, it would be a little help ful if you

The GE contract, do you remember when that was,


'

I don lt remenler exactly, but we clearly did a number

18

o f d em ons tratio ns for a numb er o t the oth er compan ies wh ich I

19

m entioned to '-- prior to getting the GE contract .

20

contract kzas at leas t a year in the making: so I would say we

2l

were in -- I would say we started doing demonstrations in 2000

22

for sure . I believe we did a demonstration for Intel either at

23

the end of 20.


30 or the beginning of 2001 and worked with Intel

24

forw I would say, at 2east a year .

The GE

CZCILIA VCISI,, NV CCR #24 6 (775) 82 7-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 10 of 207


:

1
2
3
4

5
6

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10

Q.

How lbout the demonstrations at the MGM you were

re ferring to?
A.

That would have been in the -- 1 believe, again, the

end of 2000-2()01 time frame .

Q.

Okay . And so the heightened interest by the

A ir Fo rce , wab; Lha t, then r sho rtly therea fte r?

A.

Yeahp. that wotlld have been 1n: I would say, end o f

2 001-2002 i1k .

Q.

Did lnhere come a time that you entered into a contract

with the Air Iporce?

11

A.

Yes .

12

Q.

When was that?

13

A.

1 dol't remember exactly, but 1 believe it was the end

14

of 20 02 .

15

Q.

M d lfas that contract for a certaj.n duration?

16

A.

Yes . The contract we had with them was on what I

17

would call an intelhim basis . It was -- 1 don 't remember i f it

l8

wa s s ix m onthl; or n ine mo nths .

19

A ir Force had asked us to work with another governmental agency

20

where that agency basically picked up that contract and went

21

forward with (Lt for approxim ately another year to 15 months .

22

Q.

M d at tha t po in t , th e

What was the contract for?

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MR . LOCG R : Which one, Counsel? Air Force?

24

THE COIJRT :

Yeah .
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CECILIA kr ffffs NV CCR #246 (775) 82 7-0 672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 11 of 207


J

MR . JAKOPCN :

The contract with the Air Force .

THE WITNESS :

This js going to get into what -- there

3
4

w111 be a debate as to what 's classified and to what's not.


THE COURT : Well, here 's my concern, is that

everything that's been submitted to me in terms of authority --

and my clerk and I did some zesearch on this issue too -- talks

about the government being the party that objects to thngs

that are classified ancl not the persons that are involved .

And :
50, unless somebody can convince me otherwisez il

10

there ls a question asked, and unless there's som e statute or

11

some other procedure that precludes me from allowing that, I 'm

12

going to direct the witness to answer the question .

13

MR . FLYNN :

The statute does involve agents, Your

14

Honor . Mr . Montgomery is, without question , as his examination

15

will show, an agent of the U .S . federal government .

16

Mr . Trepp is.

17

I doubt

Whether eTreppid Technologies is under the contracts

18

tha t signed w tth th is other d ep artm ent o K th e gov ernm ent ,

19

whether eTreppid Technologies is an agent, frankly, I have

20

nothing to ofrer, because these contracts are taken by the

21

agency and they bre not given to the individual.

22

But the contract -- in this instance particularly,

23

M r. Montgomerg has the highest security clearance you can get.

24

He is under tNat contract, undoubtedly an agent, and


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C,b;CILIA br()lf.L, NV CcR #246 (775) 8.


27-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 12 of 207


?

Mr. Montgomer'g has spoken to an individual w ithin the

government who --

MR . LOGAR : Wait.

4
5

Somebody walked in .

(Whereupon, a man is instructed to leave the


courtroom .)

THE COURT :

G() aheacl -- as soon as this gentleman

leaves, go ahead and linlsh what you were golng to say, but 1

have a question. Maybe 111 just ask it now, if you don't

mind .

10

MR . FLYNN :

Go ahead, Your Honor.

11

THE COURT: Assume he 's an agent, which is news -- I

12

mean, I don 't know about that . But assume that he is.

13

need to see tae statute or the order or the rule that says, as

14

such an agent, thah issues like this cannot be discussed in

15

this courtroom .

16

Then I

I haven 't seen that.

MR . FLYNN ;

J believe we gave you the Cheney case .

17

gave you variaus cases from the Supreme Court which clearly

18

says he canno t .

19

THE WITNESS : Your Honor --

20

THE COURT:

We

Well, these cases that I'm talking about

21

here are cases where the government -- the petitioner

22

government, the director of the Central Intelligence Agency,

23

who was a party defendant -- the statute that you gave me,

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Title 18 U .S.C .S .: the United States may request the Court to


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CECILIA 7OS=z NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 13 of 207


re

>-

conduct a heazing to make determinations concerning the

relevant use c'r admisskb lity of classified material . United

States ain 't here .

MR . FLYNN : You 're right, Your Honor.

And our ability

to bring in the United States in the next 48 hours is limited .

I w ill rep resen t to the Cou rt , b ecau se 1 wa s pre sent w ith

Mr. Montgomery when he had the conversation with a ranking

United States government official who instructed him do not

teskify about any classified makerial or you will be in breach

10

of the agreement and it 's treasonous.

11

he was given .

12

frankly, caught between Mr. Trepp and Mr . Montgomery. And what

13

they choose to do is up to them .

14
15

That ts the instruction

Now, what they choose to do -- because they are,

THE COURT : Do they know this hearing is being held


today?

16

MR . FLYNN : Yes, they know as of today .

17

THE COURT : Well, I mean: I1m assum ing, being that it

18

19

was such an erlergency, they 'd be here .

MR. PEEK : Your Honor, this action was filed 19 days

20

aqo, January 19th . As this Court knows, Mr . Montgomery was

21

present with Judge Polaha . So they lve known about this, and

22

this was a ma'nter of some urgency to them .

23
24

THE COURT : I mean , we can get real silly. My


classmate and roommate at the Naval Academy is now the chairman
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CECILIA vcsf's NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 14 of 207


)

of the Joint Chiefs ot Staff, Peter Pace.

the phone.

1 can call him on

You want me to do that?

MR . FLYNN :

Sure . And 1 will represent to the Court

that I have contacted, prior to the TRO going in place, the

former Gecretary of Defense and others .

THE COURT :

l 'm not trying to be difficult about this,

but I'm being placed jn a very uncom fortable situation because

1 'm being asked to deal with an issue about which I have some

sensitivity.

You might infer from my background that 1 do . A t

10

the same time, we have a hearing here that 's been scheduled for

11

a substantial period of time and don 't really see how, so far,

12

that w ebve taLked about anything thatls necessary to this

13

hearing in term s of whether or not this hearing can go forward

14

or whether or not 1 can qo ahead and make the decision I need

15

to make .

16

I was about to say we haven lt really gotten to the

17

pointz yet, ekther in terms of what ths information is, and

18

I 'm hop in g tha t we fre going to get the re p retty quic k .

19

MR . FLYNN : Your Honorz 1et me say this . If M r. Trepp

20

wishes to vioLate his oath of secrecy on these matters, thatls

21

up to Mr . Trepp .

22

Mr. Montgomery, with a11 due respect -- and I think we

23

can avoid it on h is direct so we can get to the core issues --

24

is going to assert the goverl= ental privilege .


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.e g

w e

Now, if it rclquires the goverrr ent coming in within

the next 48 hours ho talk to the Court, we bll see what

develops.

Your Honor, you rre not dealing on the level of Mr . Hennessey .

You rre dealing on a level that is so compartmentalized, as I

understand itr that there are very few indivduals --

Mr . Hennessey wouldn 't even know who to contact to dekerm ine

relevant issues on some of Lhese issues . Bu* if Mr . T repp --

9
10
11

12
13
14

1 Lhink at this level, what you 're dealing with,

THE COURT : Wabt a minute. Hold on . Sit down .


Sir, you need t.o sit down too .

I can 't hear when

there 's a11 this conversation .

Now, go ahead and fjnish what you were going to say,


and then 1111 1et Mr. Peek speak.
MR . FLYNN :

Finey Your Honor.

We want to go forward .

15

If Mr . Trepp wants to violate his oath, that 's up to him .

16

M r. Montgomery, hopefully, w ll be able to give the Court

17

enough so that won 't be necessary .

18

If th e d efense wants to then ask quest ions abo ut it ,

19

if the goverm aental privilege has to be asserted, m aybe we ll

20

do a little vo ir dire . The Way we do it, I suppose weVll -- it

21

could be procedurally done in chambers.

22

THE COURT : Yeah, what I'm saying is, the contents of

23

it don't need to be disclosed, as far as I'm concerned z to

24

understand whether or not there should be an injunction with


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:..-.z)

-...-

regard to it.

And i f youtre concerned about the contents, I

don lt th ink 1 need to know about that.

But Leh 's go ahead.

with this thing.

privilege to invoke.

I 'm with you . We 'll go ahead

We bll see when we get there if hels got a

MR . PEEK :

Your Honor, so there 's no m isunderstanding

with the Courl: and at least the plaintiff, this source code has

no classificallion to it .

to it. It certainly was used in conjunction with classified

Ih has no top secret classification

10

material that was provded to eTreppid to run the source code

11

programs to identify objects, identify patterns, identify

12

anomalies . But I want to at least make it clear to this Court

13

that despike M r. Flynn 's continuous statements unsupported by

14

affidavit, notz even really presented in his oppositionz not

15

even part of any motion practice here, that this technology was

16

started out as, this is technology that emanates from public

17

filings that E had in the copyright office, to now something

18

th at h as som e super-secre t aspect to it .

19

keeps morphintp it keeps changing every time we knock down the

20

straw man tha'z he puts up .

21
22

It keep s evo lv in g: it

THE COURT: Al1 right.


.

MR . FLYNN ;

So 1 want to go , too, but I want to at

23

least correct the record that there is no -- nothing behind

24

this .

This is our source code.


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'

THE COURT:

1 understand that's your position .

just -- when you hear two thinqs from people that have

information, 1 don 't know exactly how to balance it out until T

hea r it all .

MR . PEEK :

I Lhvnk you should hear it based upon sworn

declarations as opposed to anecdotal comments from counsel.

THE COURT :

MR . PEEK : And we have testimony .

I understand .
We have only

anecdotal remarks.

10

THE COURT :

1 understand .

11

MR . FLYNN :

Your Honor, the evidence will be that it's

12

above the iighest security clearance called SAP. Not only is

13

it classified beyond - - it 's the highest classification

14

existing in the United States, ''the source code.''

15

THE COURT: A 1l right.

Well, we dll see .

Let's go

16

ahead . We '11 try to get through the process of figuring out

17

what it is and where it came from and where it is now .

18

B Y M R . JAKO PIN :

19

Q.

20
21

Strike the question . 1'11 try to start again .


The contract that we 've been talking about, was that

contract with eTreppid or was with Dennis Montgomery?

22

A.

With eTrepptd .

23

Q.

Who was the contract for?

24

A.

I don 't understand what you m ean .


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IXJ.L, NV CCR #246 (775) 827-0672

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kw- )
'

1
2

Q.

> .

What were the services that eTreppid was providing

under the contract?

A.

To p rocess video information and give outputs.

Q.

And did e'I'reppd fulfill that contract?

A.

Yes.

Q.

And ik was fulfillecl when?

A.

I believe the A ir Force contract was for six or nine

months, and then il. was given off to a different governmental

agency .

10
11

Q.

And did it expire with respect to this different

governmental agency at any point in time?

12

A.

Yes; about: a year and a half ago .

13

Q.

Were there any other governmental contracts that

14

15

16

eTreppid has entered bnto as well?

A.

Yesz there was another contract we got with Socom to

do testing for an ATR project.

17

Q.

And when that was?

'

18

A.

1 b e Lieve it w as abou t a year ago .

19

Q.

Does that contract continue today?

20

A.

It 's either expired or it fs about to expire.

21

Q.

Other than that contractz any others?

22

A.

Yes: there was one other project called -- another

23

Air Force project called Eagle Vision, which started about six

24

months ago and should end -- wellz we had ko put the contract
17

CMCILIA Mofff/, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 19 of 207


Lx ..- /

w .

on hold because, since we don t have the source code, we can 't

do the work.

stream , by deflnition, is on hold until we can get it back .

Rut in theory, we were supposed to have another -- about seven

or eight months lelit on that contract .

Q.

So the ccntract, by definition, and our revenue

You refer to the source code being gone . When did you

first find out about the source code being removed at the

company?

A.

It would either have been on Sundayp January 6th --

10

no, excuse me .

11

January 9th .

That would be Sunday, January 8th, or Monday,

12

Q.

How did you learn about it?

13

A.

Sunday, I got a call from Jesse, one of our employees,

14

saying that he wanted to get together w ith me and discuss

15

something with me.

16

Q.

And what happened next?

17

A.

1 got together with him that afternoon, and he

18

exp lained to rRe th at there were - - eith er he knew spe ciftca lly

19

or he knew other people that said over the last couple of weeks

20

Dennis had either taken their hard drives or they had noticed

21

something missing from their workstations.

22
23
24

MR. FLYNN: Objection. Move to strike. Hearsay, Your


Honor .

.
THE COURT:

I'm going to permit it .

I<m going to

18

CECILIA MOST, NV CCR #246 (775) 827-0672

'

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 20 of 207


.

listen to hearsay to a fairly large extent during this hearing

under the general exception to the hearsay rule .

BY M R . JA KO PIN :

Q.

Mr. Trepp : before we continue with the source codez a

couple questions about the government contracts .

Were those

government contracts fulfilled using a proprietary eTreppid

source code?

A.

Yes .

Q.

And how djd you fulfill them? Did you provide results

10

11

to th e go verN aen t?

A.

Yes, in every case .

Or, in one of the contracts, we

12

actually gave them -- 1 don 't know the number -- a number o f

13

laptops that had our executable source code on them so that the

14

Socom people could actklally operate them on their own .

15

Q.

Thank you . Getting back again to the removal of the

16

source code, you talked about having an afternoon meeting with

17

Jesse . What did you dc) next?

18

A.

I ca Lled Sloan thah n ight at hom e and satd w hat w as he

19

-- was he aware of anything that was going on . And he either

20

alluded to the fact that while he was on his vacation, that he

21

wasn 't sure, but he ether thought a substantial or all of the

22

source code was gone .

23

early the nex'z morning to give me an update as to what was

24

going on relaLive to that .

I told him it was imperative he came in

19

CECILIA Flffr, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 21 of 207


l
t.. ,)

'
..
..

Q.

Did he do that?

A.

Y es .

Q.

What did you do then?

A.

1 asked if he could give me a better assessment as to

what was going on, and 1 immediately went to Cind Dennis.

Q.

Did you?

A.

Yes .

Q.

W ith respect -- when you found out what was going on,

9
10
11

what did you find out?


A.

I basically said to Dennis, 'There 's obviously

something awry here . What's going on?''

12

Q.

What did he say?

13

A.

He said, ''1 don 't know what you bre talking about .'' l

14

then had to ga back upstairs to my offbce .

I had planned a

15

four-month vacation around the world with my family .

16

supposed to have left that day. And obviously, with a problem

17

brewing , I obviouszy figured out I shouldn 't be leaving and

18

figu re out exactly wh at wa s goin g on .

19

the airport to see off the people that we were supposed to be

20

traveling on this trip with .

I was

So l d id , in fact, go to

21

When I cam e back in , I got a great deal more

22

inform ation from the employees basically stating that the vast

23

majority of al1 of the workstations were deleted -- a1l of the

24

source code was deleted, the ISA server was deleted and maimedy
20

CECILIA U()SZZ NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 22 of 207


l

2
3
4

., ?

and I was perplexed , to say the least .

Q.

Did you direct the employees to do anything in finding

that out?
A.

To fjnd otlt exactly: to the best o f their knowledge,

exactly what happened.

get together to cumulatively to come up w ith exactly where

everything stood . 1 asked Sloan to call Dennis and ask him to

come back into the office so that I could discuss with htm

again what was going on. And he said that he would come back

10

And I asked them a11 so that we cou ld

in r but he didn lt .

11

Q.

Okay . That was on Monday, correct?

12

A.

That is correct.

13

Q.

Anyth ing else happen on Monday w ith M r. Montgomery?

14

A.

Not that J can recall.

15

Q.

How about on Tuesday?

16

A.

Tuesday, l again put a call in to him , told him we had

17

to get together .

1 meL -- 1 don't remember if 1 met him

18

upstairs or downstairs initiallyy and said r ''What on earth are

19

you doing?

20

we don lt have the source code, how can you have people work?

21

What did you do with it?''

The people can 't work. We've got 20 employees .

If

22

And he said, ''I don lt know what you 're talking abcut .''

23

And t saidy ''We11r what about a11 of the workstations

24

and the source server and the ISA serverz why did you delete
21

CLZCILIA MOfff,z NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 23 of 207


--

....

al1 of those?''

And he said, ''We11, I didn 't do it.''

So I said, ''Who on earth did?''

And he sad to me, ''We11y Patty did it.''

N ow , it w as prepos terou sy tha t statem en t, b ecause I

had found out from Sloan that morning that the only two people

that had access to be able to access either the source serverw

the 1SA serverz or a L1 of the individual workstations, were

Mr . Montgomery and Sloan .

10
11

1 said , ''Please 1et me help you get through this.

don t understand whak you dre doing.''

12

And he just screamed and yelled and ranted and raved.

13

Half of the ellployees in the building certainly heard him

14

because he was in an absolute tirade.

15

back, jumped into his truck. And once again, I appealed to 1et

16

me help you, and it went to no avail. He just drove away.

17
18

Q.

He went running out the

There was reference earlier to backup disks . Are you

famillar with those?

19

A.

Yes .

20

Q.

Could you tell us about those.

21

A.

Denn is had told Sloan to back up everything in the

22

building, with the exception of the source server stuff .

23

also said to Dennis from Day One, when we started the business,

24

that it was essential for what would be in my family's best


22

CLZCILIA VOHL, NV CCR #246 (775) 827-0672

I had

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 24 of 207


;'

--/
z

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interest and his family 's best interest for me ho personally

keep a copy orL a regular basis of the source code .

to do that at a minlmum. of annually, and certainly, anytime

Lhere was a major event that would have occurred, we would

eltber have a new project or new projectz that I would be able

to keep a copy outside of the building, outside of the -- what

was in control ot eTreppid .

I asked him

And 7, over a seven-year period, kept getting -- they

were first CDs, they became E'


V DS, and then they became hard

10

drives .

11

only two people who hacl access to the safe-deposit boxes was my

12

wife and myself.

13
14
15

Q.

I kept all of those in safe-deposit boxes. And the

After the events that youfve just talked about took

place, did you get those retrieved?


A.

Yes.

I asked -- I ctidn 't want to leave the building

16

because there was obviously a great deal of turm oil, and people

17

were worried about any number of things, obviously .

18

trying to keep -- get some klnd of stability, at least on an

19

interim basis, until we coulcl figure out what w as going on . I

20

asked my w ife to go to the safe-deposit boxes, retrleve al1 of

21

the disks and bring them back into the office .

22

Q.

And she did that?

23

A.

She did it .

24

Q.

And what did you do with the disks then ?


23

CECILIA VOHL, NV CCR #246 (775) 827-0672

I was

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 25 of 207


(
. ..+

A.

1 iv tediately brought them into Sloan 's office .

And

Sloan -- 1 said to him , Lhese are the disks that Dennis had

given me over Lhe years with al1 of the source codes for a11 of

the projects that weld been working on from Lhe beginning of

time, and that this will be the answer; please look on these,

and tell me exactly what 's on there, hoping that, obviously,

a11 of the source code for a11 of the projects that weld been

working on over the years was there.

Q.

Did he report back to you after he did that?

10

A.

Yes. He just started to laugh. The first thing he

11

said to me was: ''Hc)w come there 's so few of these?

12

me he used to give them to you every two weeks.''

13

14

Dennis told

MR . FLYNN : Your Honor: I lve got a continuing

objection on hearsay.

15

THE COURT: Al1 right. Objection is noted. Tt will

16

be continued .

17

BY MR . JAMOPIN :

18

Q.

Anything else?

19

A.

1'm sorry, I dsdn 't understand what -- I didn 't know

20

what just happened.

21

Q.

He objected, and the judge allowed you to answer.

22

A.

Okay . You better ask me the question again .

23

Q.

Was there anything else that you were told about what

24

was on those disks?


24

CECILIA 7/SI, NV cCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed f05/28/08 Page 26 of 207


1
im
t.t--.
1

A.

Yes.

Sloan then went through , disk by disk, and went

through the whole thinq and basically started to laugh and

said, ''There ls nothing here.'' He did say there was some

reference to one compression project, but that it was totally

worthless by vlrtue of the fact that there wasn 't source code

there for it; it was just an EXE. He said the bulk of it --

the rest of the junk on it was a bunch of imagery, just bitmap

im ages of stuff.

9
10

11

Q.

What has the effect of the loss of the source code

been on the company?

A.

Wellj we have no ability to generate revenue . We bve

12

told the two governmental agencies that we have pending

13

contracts w ith that we can 't perform on them . We bve asked for

14

an extension , if that wou ld be a possibility.

15

Obviouslyy by not having the contracts: we don 't have

16

revenue . I have to make a decision at some point in the near

17

future, how many months 1m going to be able to sustain paying

18

th e 2 0 fam ilie s who are emp lo yees .

19

come out of m'g pocket at some point.

That 's g oin q to have to

20

Q.

How many employees are there?

21

A.

Twenty .

22

Q.

How many of those are engineering types?

23

A.

Seventeen or eighteen.

24

Q.

Does the company routinely have a11 of their employees


25

CZCILIA krffzp, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 27 of 207


$ -'

''* '3

sign agreements such that the work that they do is the

company bs?

A.

Absolutely.

Q.

Is the company currently in the process of trying to

nego tlate n ew contracts?

A.

Absolutely .

Q.

Was llhe office software to be --

A.

We were -- up until this evenk, we were on the verge

9
10

of getting a very substantial contract -- or multiple


substantial contracts.

11

Q.

Up until these recent eventsr has there ever been any

12

conversation that you #ee had with Mr. Montgomery to the

13

effect -- 1 mean -- strike that.

14

Have there been conversations you #ve had with

15

Mr . Montgomery from time to time relating to pattern

16

recognition?

17

A.

Yeah, for mang, many years.

18

Q.

In any of those, did he say anything about his owning

20

A.

Owning what?

21

Q.

Any of -- any software relating to pattern

19

22
23
24

it?

recognition .
A.

No, absolutely not .


MR . JAKOPIN :

What 's our next number?


26

CECILIA voHLr NF cCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 28 of 207


(<Mt.

1
2

MR . IPLYNN :

1 think we 're dealing w ith 8 now .

I think

it's 8 .

3
4

(Pla Lntiff 's Exhibit 8 was marked for ldentification.)


BY MR . JAKOPIN :

Q.

Hand tng you a copy of a document that has been marked

as Exhibit 8, do you recognize this as a business record of the

company, M r . Trepp?

A.

Yes .

Q.

And what is it?

10

A.

It 's an assiglw tent of a U .S. patent .

11

Q.

And on the foilowing page, is a copy of that patent

12

attached?

13

A.

Ye s .

14

Q.

Actually, a patent application .

15

A.

Yes .

16

Q.

Is this the patent application relating to an

17

invention that was macle by Dennis Montgomery at the company?

18

A.

Y es .

19

Q.

And does this assignment reflect that he assigned this

20
21

patent to the company on this assignment dated M arch 7th# 20022


A.

Yes, it is .

22

MR . JAKOPTN ;

Thank you.

23

Can I get this offered into evidence?

24

THE COURT : A re you offering Exhibit 82


27

CECILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 29 of 207


r'

rr7

'%v

MR . JA KOP TN :

MR . FLYNN :

M ay 1 have one mom en t , Your Ho nor?

THE COURT :

Yes.

Ye s .

lsn ft this attached to one of the

pleadings?

MR . JAKOPIN : There were three patent applications

attached to th e pleadings, Your Honor . Wedve actually got more

patenk applications than the three that were aktached to the

reply.

Fran kly, if they would stipulate, 1 could get a11 of

10

these marked together and we could move ths along more

11

quickly .

12

13

THE COURT :

So the answer to my question is ''no,''

right? M y question was, isn 't this --

14

MR . JAKOPIN :

This particular one?

15

THE COURT :

16

MR . JAKOPIN : 1:11 find out.

17

1 don 't believe soz Your Honor.

18

THE COURT: A1l right. 1 just thought I'd seen it.

19

MR. FLYNN : Your Honor: we're going to oblect on

Yes.

20

authentication grounds . Even though we think it's irrelevant,

21

the individual who allegedly witnessed it was fired five weeks

22

prior to March 7th . And there are other documents that have

23

been given to the Court where Mr . Montgomery ls signature was

24

obviously forged .
28

CECILIA Mos2'
w NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 30 of 207


y'

q-.)
1
2

'.'
.-

MR. PEEK: Your Honor, will they just say or do


anything?

THE COURT : Waj.t, wait, waitz wait.

M R . PEEK ;

THE COURT : Ilold on, hold onz hold on .

Well, I haven 't heard -- maybe I have, but it 's been

You know --

lost in a11 of the conversation here. Has a foundational

question with regard to Exhibit 8 been asked of the witness?

MR . JAKOP EN :

When 1 asked him if it was a buslness

10

record of the company, he said yes. He indicated that he was

11

aware that this was one of the inventions of Mr . Montgom ery and

12

that this was the assgnment that related to that invention .

13

14

THE COURT : And he 's seen it before?

and correct capy of what he ls seen before; is that right?

15

16

And it's a true

MR . JAKOPIN : Whether he has seen this particular -- I

meanr what is --

17

MR . PEEK : Ether he has or he hasn t.

18

THE NITNESS :

19

THE O
wOURT : Al1 right. And how does he determ ine that

'

I don 't believe 1 ever havez Your Honor .

20

it s a business record of th'


e company, simply because of its

21

content?

22

MR . JAKOPIN : Correct: Your Honor . Further, the

23

published app lication is published by the U .S . Patent Office.

24

I mean ; this is in a format that is published by the patent


29

CSCILIA Uofff,e NV CCR 9246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 31 of 207

t-J

rrr'
'

o ffice .

with the patent office and published by them .

A nd 150 , that 's a record o f w ha t h as b een filed from --

MR . FLYNN :

Your Honor, in order to authenticate and

admit into evidence in any courtroom that I know of in the

United Statesg you neecl a certified copy from the patent

office, number one ; nunl er two, in order to prove it ds a

business record y heds got to go through the four elements of

bu sin ess reco rd s .

He doesn ft even know what it is, 1et alone being able

10

to go through the four records -- four elements, 1et alone

11

knowing what :zhe fou r elements are, let alone knowing what the

12

business routLnes of the company are with regard to

13

recordkeeping . None o1' that has been established .

14

THE COURT : Well, there truly hasn 't been any

15

testimony about who the custodian is; whether it 's kept in the

16

ordinary counse, things like that. Why don 't you see if you

17

can 1ay just a little bit more foundation. I want to give this

18

a little bit of thought too .

19
20

My inclination is to -- M r. Trepp, does that appear to


be Mr . Montgomery 's signature on the bottom?

21

THE W ITNESS :

Yes.

22

THE COURT :

23

(Plaintiffls Exhibit 8 was admitted into evidence .)

24

MR . FLYNN : This will be 92

I 'm going to adm it it .

It 's adm itted .

30

CECILIA UOfff/z NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 32 of 207


i
'.-,
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l

M R . JA KOP IN :

(PlaC-ntiff's Exhib it 9 was marked for identification .)

4
5
.

This w ill be 9 .

BY M R . JAKO PIN :

Q.

Handg.ng you a copy of a document that 's been marked as

Exhibit 9, is this a business record of the company, M r. Trepp?

A.

It looks ike it .

Q.

Is this a true and correct copy of an assignment

signed by M r. Montgomery and the attached published patent

application entitled ''Method and Apparatus For Determin ing

10
11

12

13

Pattern Within Adjacent Blocks of Data''?


A.

Yes .

MR . JAKOPIN : M ay I have Exhibit 9 marked into

evidence?

14

MR . FLYNN : Your Honor, same basis On authentication

15

for -- but as I understand it, this is a11 compression stuff.

16

THE COURT : Apparently, it is . You know, my thinking

17

was whether or not your client really contends that these are

18

not authentic and that these are not h.s signatures on these

19

documents, at least for the purpose of this hearing.

20

about whether this person who witnessed it was there at the

21

time, I mean: that -- I mean, that's more -- almost more

22

James Bond type stuff, and I expect maybe he lll be a witness in

23

this case before too long .

24

The issue

I think, for the purpose of authentication and for


31

CSCILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 33 of 207


(

relevance and for allowing these documents to be adm itted, that

by looking at the contents of the documents themselves,

M r. Trepp 's testimony, his fam iliarity with M r. Montgomery 's

signature, this appears to be his signature, is enough for me

to allow these to be admtted .

So Exhibit 9 is admtted . And then if you have

testimony down the roacl, I can certainly reverse my decision on

that .

authentication, that there 's been enough to allow it for the

10

11

But I lhink, in terms of relevance and admissibility and

purpose of th is hearing.

MR . FLYNN : 'm d, Your Honor, just so therels some

12

clarlty here, we don 't necessarily agree that this is

13

Mr . Montgomerys signature. Th issue with some documents that

14

have been given to the Court, which is so obviously -- pardon

15

me -- fraudulent that we have to be cautious with reqard to --

16

MR . PEEK : Your Honor --

17

THE COURT : Well, 1'm saying --

18

MR . PEEK ;

19

THE COURT : Stop , stop, stop . There will be a time

1'm giving --

20

when that can be addressed. L mean, you know, if you object to

21

the document as fraudulent, then there s got to be more than

22

that objecticn. Therels got to be some proof: therels got to

23

be some evidence, there 's got to be more than that.

24

And so what I1m saying is, if you can produce that


32

CECILIA VOSLa NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 34 of 207

t'-rz

r
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evidence at some polnt in time, 1 '11 consider that evidence.

But just to say it's fzaudulent when we've got testimony to Lhe

contrary -- I'm gong to admit the exhibit .

M R . FLYNN :

Fine y Your H onor .

MR . PEEK : And , respectfully, what troubles me is that

M r. Flynn can come here from Massachusetts and do and say

anything abou- me# who has submltted these doeuments, and say

what I subm it led was fraudulent . That fs outrageous to me .

just think that is -- you don't just come in here one time,

10

one shotz and take cheaip shots at people .

11
12

MR . FLYNN :

Stevep assume it has got nothing to do

with you .

13
14

%HE COURT :

ilold on, gentlemen .

Don 't get your

feelings hurt about this .

15

MR. PEEK: But just --

16

THE COURT : l've been around the block a couple times.

17

T understand whatfs going on.

18

to be personal as to you, and I'm not reading them that way .

19

r don't take any of these things

So let 's get back to what we were talking about.

20

Exhibit 9 is admitted.

21

documentsz go ahead and offer themz and we:ll go from there .

22

(Plaintiff's Exhibit 9 was admitted into evidence.)

23

24

lf you have some other similar

BY MR . JAKOPIN :

Q.

Mr . Trepp , with respect to Exhibit 9, do you see in


33

CECILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 35 of 207

txTfz

(.N

the abstract -- it's the seccnd page -- the first sentence

talks about f'ahe present invention describes methods and

apparatus for providing pahtern recognition between adjacent

sequential fritmes o f data''?

A.

Yes.

Q.

Were those activities that were going on at eTreppid

7
8

9
10

in the 2001 t:Lme frame when this application was filed?


A.

Yes .

(Pla kntiff 's Exhtbit 10 was marked for


identification .)

11

MR . FLYNN :

This is 10?

12

THE CLERK :

Yes .

13

THE COURT : How many more of these do you have?

14

MR . PEEK :

15

THE COURT : Why don 't you take -- well, I don 't want

16
17
18

Five, Your Honor .

t/ tell you how to do this -MR . JAKOPIN :

Welll look at them all and save a few

m inut esz th at 's fin e, Y ou r Honor .

19

THE COURT :

20

MR . LOGAR : Counsel: for the record, will you identify

21

Yotl read my mind .

what you handed the clerk .

22

MR . FLYNN : And are these going Lo be in order?

23

MR . JAKOPIN : These are going to be in order.

24

THE CLERK :

Top one is 11.


34

CRCILIA VOSA, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 36 of 207

/
1

MR . JAKOPjN :

MR. FLYNN : Maybe you could just --

THE COURT : You marked Exhibits 11 through what?

MR . JAKOPEN :

THE CLERK : Yes, Your Honor, that ts what I have .

THE COURT : A11 right.

MR . PEEK :

THE COURT :

This is 11, 12r 13 and 14 and 15 .

Oh, there rs one more .


So 11 through 16# then?

ls that rght:

sir?

10
11

Top one is 11.

MR . JAKOPIN : Actually, it will be two more, 11


through 17z Your Honor.

12

THE COURT : Al1 right.

13

(Plaintiff's Exhibits t1 through 17 were marked for

14

identification.)

15

MR . FLYNN :

ls 16 the one --

16

MR . JAKOP IN : Exhibit 16 is ''System and Method For

17

Generating Work Conditions in a Surveillance System .''

18

B Y MR . JA KOP IN :

19

Q.

Mr . Trepp , I've handed you copies of documents that

20

have been m arked as Exhibits 11 through 17. Are each of these

21

copies of the assignment and patent application for a different

22

invention filed by eTreppid?

23
24

A.

Yes.
MR . JAKOPIN :

T ask that each of these be admitted


35

CECILIA V(lSIs NV CCR #246 (775) 827-0672

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t.v

t
-rsv
1

into evidence .

MR. FLYNN : Same objection, Your Honor.

THE COURT: A11 right. The objection with regard to

Exhibits 10 through 17 is noted .

5
6

(Plal.ntiff's Elxhibits 10 through 17 were admitted into


evidence .)

7
8

They lll be adm ithed .

MR . JAKOPIN :

That's al1 1 have of this witnessr Your

Honor .

THE COURT : A 11 right.

Mr . Flynn?

10

MR . FLYNN :

11

The iast one was 17?

12

THE COURT : Yes, sir .

13

(Defendant's Exhibit 18 was marked for

14

Thank youz Your Honor .

identification .)

15

16

CROSS-EXAM INATION

17
18

19

BY M R . FLYNN :

Q.

Mr. Trepp, before we get into the nuts and bolts of

20

what we 're dealing w ith here, I 've given you what -- a copy of

21

what has been identifed thus far as Exhibit 18.

22

recognize this document, sir?

23

A.

Yes.

24

Q.

Describe to the Court what it is .

Do you

36

CECILIA ketlsfzz NV CCR #246 (775) 827-0672

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(r/

(/- .

..

A.

It's an amendment to a loan which 1 gave to Dennis

starting in 1999 . And I think the last loan 1 gave to h1m was

on December loth .

Q.

Of what year, sir?

A.

105 .

Q.

And who prepared this document?

A.

Dou g Frye .

Q.

He 's your lawyer?

A.

Yes .

10

Q.

How Long has he been your lawyer?

11

A.

Abou L 20, 25 years.

12

Q.

And fn fact, when you went on your six-month cruise

13

right after the deal was made with Mr. Montgomery, Mr . Frye ran

14

the company?

15

A.

1 don't think that's correct. 1 believe Dennis was

16

the manager wnen I was gone: and then I think when I got back,

17

Doug was made the manager. I 'm not a hundred percent sure.

18

don 't know .

19

Q.

Who signed the checks and paid the employees?

20

A.

I beg your pardon?

21

Q.

When you were gonez who signed the checks and paid the

22

employees?

23

A.

1 have no idea .

24

Q.

What was -- wa,


s Mr . Fryew during that six-r onth
37

CECILIA VOSL, NV CCR *246 (775) 827-0672

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C.!!-1

t-.-.-...
-

period , being paid by eTreppid Technologies?

A.

As cclrporate counsel or as an employee?

0.

In any way.

A.

lf he had a legal bill and he was corporate counsel,

6
7

I'm sure he was being paid .

Q.

The date of this document is December 28th ; is that

correct ?

A.

Well , thatts the date it was signed .

Q.

Now, what date did you Sign it?

10

A.

What date did 1 sign it?

11

12
13

1 signed it the same date he

did.

Q.

And gour testimony is, what day is that, sir?

ls that

the day that Ls recited on the front of the docum ent?

14

A.

Yeah .

15

Q.

December 28th?

16

A.

No . This -- wait. Regroup .

I gave Dennis either two

17

or three of these where 1 told hm I wanted -- he and Brenda

18

sign ed the no tes .

19

10th , whenever 1 gave him the original document, and he said

20

Brenda wouldn 't algn it. And I sald, ''That 's preposterous.

21

just gave you more money. You told me you were going to sign

22

1t . Why is this any different than the prior note that you had

23

where Dennis and Brenda signed them both?''

24

He cam e bac k to m e after the 8 th or Lhe

Go I got frustrated after two weeks -- or whatever the


38

CECILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 40 of 207

r
'

time frame was, and 1 said r ''Dennis, sign this thing .''

Q.

Or else?

A.

Or e.
'-se, what?

Q.

Did he sign this in your presence?

A.

Y es, o f c ou rse .

Q.

A nd so the two -- where did the two of you sign it?

A.

He s.Lgned it at the front desk of our building, in the

reception area .

Q.

And '/ou were right there too?

10

A.

I handed it to him . He got the pen and he signed t,

11

and then 1 had our receptlonist sign as a witness that he saw

12

him sign it .

13
14

Q.

So tNis docr terft was signed out in the reception area

of the company; is that correct?

15

A.

Cor rec t .

16

Q.

And eho was this indlvidual, M r. Bora?

17

A.

He's our receptioniat.

18

Q.

And what relatonship is he to you?

19

A.

My brother-in-law .

20

Q.

And this signature of Mr. Montgomery -- is it your

21

sworn testimony, sir, that this is Mr. Montgomery s signature?

22

A.

Did I see him sign t?

Is that the question?

23

Q.

Well, is it your testimony this is his signature?

24

A.

Welq, the answer to that is, did I see him sign it?
39

CECILIA vtaffr,s NV ccA 11246 (775) 827-0672

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( re

(
.
' '!-

Y.

2
3

Yes, I saw htm sign t.

Q.

Have you compared th Ls signature to any of

Mr . Montgomery 's pr ior szgnatures at eTreppid?

A.

Itls irrelevant . 1 saW him sign it.


MR . FLYNN : Your Honor, 1 move to admit Exhiblt l8.

And I believe Exhibit 18 was given -- previousYy given to the

Cou rt as part of the papers .

MR. PEEK: No objection, Your Honor.

THE COURT;

10
11

12

16 is admitted .

(Plaintiff's Exhibit 18 was admitted into evidence .)


BY M R . FLYNN :

Q.

Now, Mr . Trepp, let s take you back to September of

13

1998, okay? When did you first meet Mr. Montgomery, the dater

14

if you can recall the date?

15

A.

I have no idea .

16

Q.

Was it September?

17

A.

When was the first time I met him?

18

f think --

I think I met him

in 1996, firs'z time .

19

Q.

Where?

20

A.

At the Eldorado .

21

Q.

And did you talk to him then?

22

A.

Yes .

23

Q.

What did you talk about?

24

A.

About what he was proposing .


40

CECILIA VIIHL, NV CCR #246 (775) 827-0672

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t
/..v

(.:x

Q.

In 19 96?

A.

Yes .

Q.

What was ie propos j-ng to you .n l996?

A.

He w.
anted to :start a business .

Q.

And '
Jhat d.d you say?

A.

''I don ft know enough about it.''

Q.

What did he tell you the business was?

A.

That he had tkhe ability -- he thought he had the

9
10

ability over time to develop something that could have a major


impact on the comp ressLon and movie industries .

11

Q.

Do you recall anything else in that conversation?

12

A.

No .

13

Q.

Okay . When bs the next time you meet Mr . Montgomery?

14

A.

It was either nine months or a year later.

15

Q.

Where did you meet him?

16

A.

The same place .

17

Q.

What were you doing there?

18

A.

The person introduced me, asked me to come down and

19

see him again .

20

Q.

Okayu

W ere you there on business?

21

A.

I came down to meet him because the third party said

22

he was going to be there and wanted to talk to me again,

23

because I hacb 't spoken to him in so long .

24

Q.

And again , where was this?


41

CECILIA VOHLr NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 43 of 207

A.

The Eldorado.

Q.

Were you there gambling?

A.

I don 't know .

Q.

Okay . Now, what was sald in that conversation , as

Its possible .

T cou ld have been .

much as you can currentiy recall?

A.

I don 't remeyler at this -- specific details, but it

was more of the same . He had said that he had continued to

make progress on the work that he was doing . And I sadw

finally, I'd be interested in actually looking to see --

10

actually, give me a demonstration of what you have so I could

11

try to come up with some evaluation as to if 1'd be interested

12

in investing in it.

13

Q.

What did you say?

14

A.

1 just told you what I said.

15

Q.

That no --

16

A.

What 's the question'?

17

Q.

Did you give him money at that point to start a

18

bu sinea s?

19

A.

Well, of course not.

20

Q.

Why not?

21

A.

He didn 't do the demonstration yet .

22

Q.

But this is a year later, so this is in :97?

23

A.

Yes .

24

Q.

A 11 right . Did you ask him to do a demonstration?


42

CECILIA Mosls NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 44 of 207

(.e'

(Jr>-

..

A.

He said that he would like to put together a

demon stration and we could get together at some point and he

would give me a demonstration .

4
5

Q.

Okay . Anci then when is the next time that you met

him?

A.

Sometime in :98. Beginning of 798.

Q.

Where?

A.

I think it. was at my home . 1'm not a hundred percent

sure, but I think t was at rty home.

10

Q.

Who arranged that meeting?

11

A.

The same perscm .

12

Q.

Wbo was it?

13

A.

Steve Sands.

14

Q.

And Now l()ng did you meet with him in early 1982

15

A.

For Lhe demonstration purpose?

16

Q.

For any purpose .

17

A.

If itls for the demonstration purpose, it was probably

18

about a half hour or 45 minutes.

19

Q.

And what did you see?

20

A.

He showed me a compression technology, and he showed

21

me the Gunga Din pattern recognition stuff that I alluded to

22

earlier .

23

Q.

The Gunga Dn pattern recognition ?

24

A.

Yes.
43

CECILIA V(lSZ, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 45 of 207

(.rr

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.

..

Q.

How c id he show you the Gunga Din pattern recognition'?

A.

He played a C?), and it played on a monitor or a

laptop .

I don 't remember exactlg what it was .

Q.

A CD of what?

A.

Of the demonstration of the conversion o f a

black-and-white series of frames into a colored serles of

frames .

8
9
10
11

Q.

So at this point, in your mind: what was your

understanding of what tbe technology was tbat M r . Montgomery


was demonstrating to you?
A.

A , he had an ability to compress what he said was

12

audiow vldeo: text, iaagery, and also having the ability to

13

recognize patterns in either a series of frames -- and I 'm not

14

sure if it was either just video and audio as well and video --

15

and belng ablfa to convert the video pattern onto future frames .

16

17
18
19

20

Q.

So at this point in early 1998, you, as the investor

in this company, 50/50 with Mr. Montgomery -A.

We didn't even start the company, just to make sure

weAre on track here .

Q.

You have an understanding that there are two types of

21

technology : pattern recognitionw as you've described itr and

22

data compression; is that correct?

23

24

A.

Well, to the point, that is correct . He also told me

about a11 these other wonderful things that potentially he


44

CECILIA VOSZ, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 46 of 207

(-.

( r.

would like to qrow and develop over time if he had the

engineers and the capital to do it.

Q-

But at least, we're clear on those two?

A.

Yeah .

Q.

Thost) are demonstrated to you in early '98?

A.

Y eah ,

Q.

And what did you say to M r. Montgomery at that time?

A.

That it seemed like it was interesting .

Q.

1 beq your pardon?

10

A.

It seemed like it was interesting and that I thought

11

uhat migh t be a good way to approach this was to agree, have

12

him contribute whatever he had going forward, and then we would

13

start a -- basically, a research and development project at

14

that time .

15

Q.

Now: were there two separate demonstrations?

16

A.

There could have been .

17

Q.

But there clearly, j.n your memory, was one for pattern

18

recognition based on Gunga DinB

19

A.

Y es .

20

Q.

Unquestionably?

21

A.

Unquestionably .

22

Q.

And there clearly was one on data compression, but you

23
24

don 't recall how he showed you the data compression?


A.

Well, it would have been the same thing . He would


45

CECILIA 7(),rfz'
u, NV CCR #246 (775) 82 7-O672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 47 of 207

i
k s.

(
.

have showed me a movie and said this is the size of a normal

movie: this is the size I made t, or a section of the movie or

something to that effect .

Q.

Okay, Was tt the same movie?

A.

Was the movte Gunga Din that he compressed?

Q.

Yes .

A.

I don 't really remember .

Q.

Okay . You do remember, a1l these years later: there

w ere two ?

10

A.

Two what?

11

Q.

Two demonstrations --

12

A.

No - -

13
14

THE COURT RRPOPTER :

Excuse me . One person at a time,

please .

15

THE COURT : Hold on . Stop .

16

THE WITNESS :

17

I apologize, Your Honorw but he keeps

asking --

18

THE COURT :

l understand .

L ke I said earlier , th is

19

is not like -- this is an unnatural setting for human beings to

20

be in . It's not like ordinary conversation. So just try to

21

exercise a little care, both of you, to make sure that you bre

22

not talking oeer qach other, because the court reporter can 't

23

get that down .

24

////

////
46

CECILIA Vclffpz NV CCR #246 (775) 827-0672

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1

BY M R . FLYNN :

Q.

Irl1 rephrase, Mr. R'repp . You dre very sure, as you

sit here today under oath, there were two different things that

you talked about wth Mr . Trepp (sic), that he demonstrated to

you, data compressjon and pattern recognltion ?

A.

Yes.

Q.

When is the next tinte you meet M r. Montgomery?

A.

A t the end of '98 when we decided we were going to go

forward in a business.

10

Q.

And where was that, sir?

11

A.

I haqze no idea .

12

Q.

Do you recall the month?

13

A.

It was the end of the year. It was before I was going

14

to be leaving to go to get married and go on my honeymoon .

15

Q.

When did you get married and go on your honeymoon?

16

A.

We left -- well, I got married civilly on

17

October 30th : and 1 got marrted in the church on November 29th

18

of '9 8 .

19

Q.

October -- what was it, sir?

20

A.

30th .

21

Q.

1998 .

22

So how long before that is your best estimate that you

23

met with M r . Hontgomery and made an agreement to form the

24

company?
47

CECILIA 7(?Sfp NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 49 of 207

('
.>

..y.,,

A.

About a month, month and a half, something like that.

Q.

So sometime in September?

A.

Okay.

Q.

Now, a1l these documents that your counsel,

Mr . Jakopinz showed you, did you review them before you come

into the courtroom?

A.

Did : revjew these?

Q.

Any of those .

A.

No .

10

Q.

How kong has Mr. Jakopin been your lawyer?

11

A.

Whenever we started doing the -- I mean -- are you

12

13

saylng my lawver or eTreppid ls lawyer?

Q.

A11 right . Let me zephrase. After you -- before we

14

get into the conversation you had with Mr. Montgomery, after

15

you decided to form the company, did you call an attorney to

16

create paperwork?

17

A.

Yes.

18

Q.

Wbo -- whose attorney was that?

19

A.

Whose attorney was it?

20

Q.

And -- and when you asked him to create the paperwork,

Mine . Doug Frye .

21

did you have any discussion with him -- just yes or no -- about

22

what type of paperwork he would create'


?

23

A.

Of course .

24

Q.

Okay. Now, let ls go back -- wedre going to go back


48

CECILIA VOHL, NV CCR #246 (775) 82 7-0672

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t.ry

.- - .

there, but let 's go back to your conversation with

M r. Montgomery . Describe to the Court, as best you can, what

you said to hl.m and what he said to you about forming a

company .

A.

Who said t.o who and who said to who?

Q.

What you said to M r. Montgomery and what

7
8
9

A.

I th tnk I've already said this before, but the best

that I can retzall js, Dennis was going to contribute everything

10

he had done, put it into the pot.

11

into the pot. We wouzd get a 50/50 lnterest. 1 would help him

12

get people to develop this research and develop the project to

13

make extensions of what he had done and continue to grow a

14

business together as partners .

15
16

'

Mr . Montgomery saicl Lo you .

Q.

I would contribute money

Well, let 's fkrst take the part of your testimony

where you say Neverything he had done .''

17

A.

Yes.

18

Q.

What was your state of mindz your understanding, in

19

September 1998 as to what ''everything he had done'' meant, that

20

he was contributing to your company?

21

A.

Well, clearly, the compression that he showed me,

22

clearly, the pattern recognition that he showed me, and any

23

other works that he said he had potentially in the hopper that

24

he was working on, that this would be part of the deal that we
49

CECILIA U(lHiz NV CCR #246 (775) 827-0672

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(. ,

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were going to be partners qoing forward w ith .

Q.

Did you take notes?

A.

Did l what?

Q.

Did you take any notes of what he would be

contributing?

A.

No .

Q.

Did you ask hiD whether he had anv copyrights?

A.

No .

Q.

Did '/ou ask him if he had any patents?

10

A.

I don 't believe 1 personally did .

11

Q.

Did 'gou ask him if he had ever assigned any interest

12

in any of these things that you were getting to any other

13

company?

14

A.

No .

15

Q.

Did, at any time, you have a meeting with Mr. Frye, as

16

your attorney, and M r. Montgomery over what Mr. Montgomery was

17

contributing And what you were contributing?

18

A.

I -- 1 don 't recall h av ing a m eet ing w ith th e three of

19

us# but I certainly Would have told Douq what my impression of

20

the deal was and asked Doug t'o have a discussion either with

21

Dennis or his counsel or -- so that we could actually put

22

together a term sheet and actually conclude a deal.

23
24

Q.

Now: you 'd consider yourself a sophisticated

businessman?
50

CECILIA Vtlffiz NV CCR #246 (775) 82 7-0672

'

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 52 of 207

('r ..,'

('N

A.

Yes .

Q.

How many companes do you own?

A.

I don 't know .

Q.

But you don 't know?

A.

No, q don 't know .

inves tm en ts .

Q.

.
,

More than five.

I have a 1ot of different

W ould you kike m e to thin k ab out it ?

Well, 1et me ask you this: A s a sophisticated

businessman wjth a)l your different investmen ts, you bre

familiar w ith legally binding contracts?

10

A.

Yes.

11

Q.

And M r. Frye, who has been your lawyer for 20, 25

12

years, is someone you trust as being familiar with creating

13

fairly elaboratte intellectual property contracts?

14
15

16

A.

Yes . And if he wasnlt satisfied with it: he 'd find

another attorney that could help him with it.

Q.

Did Pillsbury Madison play any role in creating the

17

documents, the contribution aqreement or the operating

18

agreem en t , fo r eTrepp id ?

19
20

A.

I don ft know specifically, but I find it hard to

believe that that would be the case .

21

Q.

So you reiied on Mr. Frye --

22

A.

Correct.

23

Q.

-- to create a sophisticated intellectual property

24

document where you were investing $1.3 millionz correct?


51

CECILIA VOHL, NV CCR #246 (775) 827-0672

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(w-J

(
''v

A.

lf you could deftne what -- is that a legal term?

Q.

Well, you undfarstand a simple little contracL -- two ,

three, four pages -- as opposed to something like this

contribution agreement here?

A.

Well, 1 would say --

Q.

ltls Exhibit 4 .

A.

1 would say, typcally, most of the contracts we do

are like that; not a two-, three-page, whatever you just

described.

10

Q.

Typically, most of them are like th is?

11

A.

Yes.

12

Q.

Nowz did you nstruct Mr. Frye to go meet with

13
14

Mr . Montgomery?
A.

1 might have asked him to call him or call h is

15

counsel . l don rt think I ever -- 1 guess ''no'' is the answer to

16

that question . Did 1 ever tell Doug to go meet Dennis?

17

Q.

Yes .

18

A.

No t tha t I can recall .

19

Q.

Well, obviously, it's a key issue to you , is -- you

20

know you lre putting ln 1.3 million, and you want some type of a

21

writing as to what M r . Montgom ery is putting in , correct?

22
23

24

A.

Sure. Or I would like an understanding as to what

that would be .

Q.

Now , 1 know this is an irrelevant question , but was


52

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$1.3 million a 1ot of nloney to you?

MR . PEEK :

If he 's going to say it's irrelevant, then

we know it's irrelevant, and 1'm going to object to it as being

irrelevant .

THE COURT : You know, I think it probably is relevant.

Let him answer the question .

BY MR . FLYNN :

Q.

In SepteO ler 1998 .

A.

And Lhe question was?

10

Q.

Was Lhat a lot of money to you then?

11

A.

It's a lot of money to anybody anytime .

12

13

lt certainly

is -- yes, it's a lot of money.

Q.

So iL was a lot of money to you when you made your

14

deal with M r. Montgomery because you knew you were putting in a

15

1t of money and you wanted to know what he was putting in,

16

correct?

17

A.

Sure .

18

Q.

Now , you don 't remember where the conversation took

19

p lace?

20

A.

No.

21

Q.

You don lt remember when it took place?

22

A.

I gave you a general idea .

23

Q.

Sometime in September?

24

A.

Yeah .
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1

Q.

Do you know how long it lasted ?

A.

No.

Q.

Was anyone present?

A.

T don 't recall.

Q.

Did you write out a check for $1.3 million on

September 28th --

A.

I don lt know .

Q.

-- 1998?

Was Lhere an escrow agreement?

10

A.

I would assume sot but 1 don't know .

11

Q.

In most of your deals, are there escrow agreementa

12

where one party puts n whatever theyRre putting in and you put

13

up the 1.32

14

A.

Et would seem ko be logical, but I truly don 't know .

15

Q.

Did you w ire or transfer any laonies into Doug Frye 's

16

(-

account?

17

A.

It 's very poss kble .

18

Q.

Did you write a check for $1.3 m illion? You don 't

19

know , do you?

20

A.

I don t know .

21

Q.

But you knew that was your part of the deal, but as

22

you sit in the courtroom today, you don 't know whether you know

23

you , as part of your deal, paid the money, correct?

24

A.

Do 1 know the money got there?

Yes .

54

CECILIA VOATSS NV CCR #246 (775) 827-0672

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Q.

HoW cLid it get there?

A.

1 hav e no idea .

Q.

When did it get there?

A.

f don 't know .

Q.

Did it get there in dribs and drabs over the next year

o r so ?

A.

1 don 't know, but I doubt that strongly .

Q.

Did J.t get. -- w ell, dribs and drabs . Did it get there

9
10

in more than one check or wlre transfer over the next year or
so ?

11

A.

1 don 't know . That would seem very unlikely to me.

12

Q.

In that first year -- or, strlke that .

13

Shorlnly after the deal was made, you got married

14

sometime in late October, and then you went on a six-month

15

cruise?

16

A.

Four months.

17

Q.

Four month s?

18

A.

Yes .

19

Q.

Were you gone to June 19992

20

A.

1 think I got back from the cruise in either the end

21

of April or the beginning of May . It could have been June .

22

I'm not sure .

23
24

Q.

And who d id you leave in charge of the money part of

the business between September 28th and the time you got back
55

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in M ay or June?

M R. PEEK :

Is Lhere some relevance of this line of

exam ination that relates to Lhe issues Lhat llave been framed in

a preliminary injunction?

MR . FLYNN :

Yes, Your Honor .

THE COURT :

What is the relevance?

MR . FLYNN : He has the burden of proving that he will

p revail on the merlts. if there 's a failure of consideration

under the contraet, if theres a breach of the contract, then

10

11

he can lt possg-bly prevail on the merits.

'

THE COURT: Well, 1et me ask this question just

12

directly: Are you sayng that M r. Trepp didn 't -- or eTreppid

13

didn 't pay the money?

14

MR . FLYNN :

There are no books and records that m y

15

client has ever been privy to.

16

I understand, the way the company was run: that the 1 .3 ever

17

got in speciftcally on or about September 28th as his part of

18

the deal. Bu L the CD was put in for the data compression

19

technology as Mr . Montgomery 's part of the deal, and that goes

20

to the heart of the intent and understanding of the parties.

21

It's highly unlikelyr from what

THE COURT: Well, I mean, it 's a little hard for me to

22

imagine that he gave him the CD and then waited how many years

23

now and said , ''By the way, you never paid me my 1 .3 million .''

24

A s the record stands right nowz there 's testimony.in


56

CECILIA VOHL , NF CCR #246 (775) 82 7-0672

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whatever form and under whatever circumstances, the money was

paid .

be presented. And so, the objection to relevance is overruled.

If you have evdence that it wasn 't paid, then that can

Bu t go ah ead .

that.

BY M R . FLYNN :

Q.

I 'm sorry 1 too k so long to rule on

Go ahead .

Mr. Trepp, but just to clarify this and then welll

move on, you don 't know when the money or how much actually got

put in after September 28th, do you?

10

A.

Now but I could make one phone call and tell you .

11

Q.

Okay . Well, all right.

Picking up on that point, you

12

could have totd Mr. Montgomery over the years and shown him

13

specifically how much you specifically put in and when , could

14

you not have?

15
16

17
18

19
20

21
22
23
24

A.

I coald have done a 1ot of thingsw but what is the

point of showing hlm?

Q.

Rf the money is there, it 's there.

Well, when you went on your cruise, did you know

whe th er the 1 .3 was there or not?

A.

A t this moment, 1 don bt . But I prom ise you , in a

phone call, I could tell you .

Q.

The CD -- let 's look at the contribution agreement.

Paragraph 1 .2.1, Your Honor: which -THE COURT : We 're talking about Exhibit 3,
paragraph 1.2 .12
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MR . FLYNN :

Yes, Your Honor.

THE COURT:

By the way, while we bre talking about that

exhib it, where is -- i:5 there -- there's reference to

Schedule 1.2.2, and then when 1 go back to that, it indicates

that it 's to be completed .

MR . FLYNN :

Correct, Your Honor.

THE COURT :

Is there a completed Sehedule 1 point --

8
9

I 'm sorry, 1.2.2?


MR. FLYNN :

It's never been given to us, Your Honor .

10

THE COURT : Counsel for the Plaintiff, do you know?

11

MR . PEEK :

Your Honor, it was to be provided by

12

Mr . Montgomery . If. you actually look at al1 of the

13

contributor 's books and records related to the contributed

14

assets, it was a1l of contributed books and records related to

15

the contributed assets.

16

1 .2.2 is certain contributors ' tangible personal

17

property . Contributory, Your Honor, identified in this is

18

M ontgom ery .

19

THE COURT :

1 understand .

20

MR . PEEK J So he was to provide the 1.2 .2 . So, for

21

M r. Flynn to aay, oh, my goshr they never provided it, it was

22

his obligation to provide the 1.2.2, and I guess now that we've

23

learned -- it looks like we got gamed a little b it by the way

24

this has gone on now eight years later .


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ar AJV CCR #246 (775) 827-0672

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MR . I'LYNN :

The lawyer drew up the document .

THE COURT : M y question was simply, is there a

completed document?

1?m understanding, from uhat 's been said ,

that there is not, so let 's go ahead .

BY M R . FLYNN :

Q.

Mr . Trepp'
?

A.

Ye s?

Q.

Would you look at paragraph 1.2.1.

A.

Is this about the CD?

10

Q.

Yes, CD 1.

11

A.

I looked at it before.

12

Q.

You dre familjar with it?

13

A.

Yes .

14

Q.

You lre comfoltable w ith your familiarity with this

15

paragraph?

16

A.

Yes.

17

Q.

Now, that CD, clid you have any conversation with

18

M r. Frye about how the intellectual property for data

19

compression would be described in Exhibit 32

20

A.

No .

21

Q.

Did you have any discussion with Mr . Montgomery as Lo

22

how it would be described?

23

A.

No .

24

Q.

Did you rely on M r. Fryer as your attorney: to create


59

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Ds NV CCR #246 (775) 827-0672

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a document whcrein the contribution by Mr. Montgomery would be

properly deseribed?

A.

Yes .

Q.

And where is CD Number 1, Mr. Trepp?

A.

1 have no idea.

Q.

Have you asked Mr. Frye for CD Number 12

A.

I think I asked him if he had it.

Q.

When Lhe 1.3 million was puL 1n, did you kno- where

CD Number 1 was?

10

A.

No .

11

Q.

Do you see anyLhing in paragraph 1 .2 .1 about pattern

12

recognition?

13

A.

Which one are we looking at now?

14

Q.

The ane you just said you were familiar with .

15

MR . LOGAR : Rxhibit number?

16

THE COURT :

17

THE WITNESS : l think I said I was fam iliar with the

18

CD.

19

BY MR . FLYNN :

20
21

22
23
24

3.

I 'm not familiar with the paragraph you were alluding to .

Q.

I'm sorryz I thought you said you were fam illar with

the paragraph .

A.

No, 1 said I was familiar with the CD 1 -- which

exhib it?
MR . FLYNN : The record speaks for itself.
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? .s.

THE WITNESS: Exhibit what?

MR . FLYNN :

Exh ibit 3, paragraph 1.2.1.

THE COURT :

Pc
age 1 .

BY M R . FLYNN :

Q.

It's actually the last two or three lines of page 1 .

A.

Okay .

Q.

Page 1: Exhibit 3 .

A.

Yep .

Q.

Last few pages . LetAs, first of all, establish your

I'm sorry.

Page what?

10

signature on this document: which is at the end, on page

11

numb er --

12

%HE COURT :

13

MR . TLYNN : I believe t 's 12 . I've got to eheck .

14

Page number 12 .

15

12?

BY MR . FLYNN :

16

Q.

Is that your signature?

17

A.

Yes .

18

Q.

And when you executed this document: did you ask to

19

see CD Number 12

20

A.

T don lt recall.

21

Q.

Now, going through Lhe paragraph 1.2.1, the bottom of

22

the page, paqe 1 --

23

A.

Yes .

24

Q.

-- srou see that line that says -- let 's read it into
61

CECILIA IX SF/z A?V' CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 63 of 207

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the record .

.-.

Follow me as I read it .

Okay, sir?

A.

U h-huh .

Q.

This is what Mr. Montgomery is contributing :

f'A 1l of

Contributorls know-how ; trade secrets; patent rights,

copyrights, Lrademarks, licenses and perm its, registered or

unregistered, pendng or approved; software programs and al1

programming and sotlrce codes used in connection therewith or

otherwise required to operaLe any component thereof; and a1l

programming documentation, designs, materials and other

10

information, a1l in whatever form and wherever located:

11

relating to or used in connection with, or otherwise describing

12

or consisting of any part of, the software compression

13

technology contained on that certain Software Compression

14

Engine Development Program contained on CD No . 1, a11 of which

15

is being contributed by contributor hereunder (collectively,

16

the ''Technology'f).

17

Did ( read that correct, sir?

18

A.

Ye s .

19

Q.

Was that your understanding when you executed the

20

agreement as 1-0 what Mr . Montgomery was contributing?

21

A.

Well, yes.

22

Q.

Now , your understanding for the prior nine month s,

23

howeverr was Lhat he was also contributing something you bre

24

calling today Hpattern recognition technology''; is that


62

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'

co rr ect?

A.

Y es .

Q.

And you don ft see the term ''paetern recognltlon

technology'' there: do you?

A.

No, J do not.

Q.

And it Was your lawyer who drew this up?

A.

Y es .

Q.

Now , let 's go over to the next pager paragraph 1 .3,. '.
.

''Excluded A ssflts and Liabilities.'' Read wlth mez if you will .

10

''Notwithstanding any of the foregoingy Contributor is

11

specifically not contributingz transferring or conveying to

12

INTREPID under this Agreement or by any other meansr nor is

13

eTrepp id acquiring from Contributor, any other tangible or

14

intangible assets of Contributor not specified herein ...''

15

Did ( read that correctly?

16

A.

Yes .

17

Q.

W as Lhat your understanding when you executed this

18

document prepared by your lawyer?

19

A.

Yes.

20

G.

Now y did you consider CD Number l an asset of

21

eTrepp id, then Intreptd?

22

A.

Yes .

23

Q.

And going back to Mr . Frye again, M r. Frye was signing

24

the checks fcr everybody?


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v

yy

A.

1 have no idea.

Q.

Do you know if Mr. Frye -- strike that .

Did you ever

have a conversation with Mr. Frye about whether or not he ever

got CD Number 1?

A.

Not that 1 can reca l .

Q.

Nowz let's move forward .

1 believe your testimony was

on direct, and having bn mind Mr. Venab le 's testimony, that you

repeatedly: over the years, asked for CDs to bring you up to

date so you would possess the current technology being worked

10

11
12

on at eT repp id .

A.

Is th at correct?

Copies of the source code that were generated by

eTreppid Technologes at eTreppid Technologies' yes.

13

Q.

How many times over the years did you ask for those?

14

A.

Wellr at a minimum of once a year and at any tm e we

15

had made any kind of new breakthrough on something thah we 'd

16

been working on through the research and development and over

17

the years we were j.n business .

18

Q.

You filed a declaration in this case, did you not?

19

A.

Yeah .

20

Q.

Did you say that you repeatedly asked M r . Montgomery

21

for the CDs so you 'd have a copy of what the company was

22

working on?

23

A.

24

Yes, to protect his fam ily and m ine in case there Was

a disaster .
64

CECILIA MOSZS NV CCR #246 (775) 827-0672

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6?

1
2

Q.

And Lhen -- feeling the importance of this technology,

you then went and put them in how many different safes?

A.

One .

Q.

In a safe-deposit box?

A.

Y es .

Q.

And how many CDS, or whatever, did you put in this

7
8
9

10

safe-deposit box?
A.

1 don't know the exact number . It was probably around

a dozen .

Q.

Because you hacl in m ind the importance of you having

11

possession of the source code for this technology that you felt

12

you bought when you put in the l.3 million, correct?

13

A.

That 's totally incorrect . I wanted the source code

14

backup over the seven years we were in business to preserve it

15

for hia family, my family, and for the comp any's best

16

in terests .

17

Q.

18

But as you s1t here today, the number one source code

containing tbe guts of the deal --

19

A.

Yeak-

20

Q.

-- you don 't know where it is?

21

A.

No .

22

Q.

And you /ve never asked anyone for it?

23

A.

1 don 't think there would be any reason to ask for it,

24

because when we started the business, I assGmed Dennis would


65

CECILI'A k-cyff,, NV ccR #246 (775) 827-0672

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have just put it onLo our workstations or servers: or whatever

it was. and that was the start of the business that we bad .

0.

Oh, so -- buL then as the years went on , you wanted

a1l these other CDs, but the Number 1 CD, you just assumed --

you trusted Dennis that he put it nto the company?

A.

Well, why wouldn't 12

Q.

Well/ Mr. Trepp, webre going to determine that.

8
9

But xet me ask you thisz sir: Did you have any reason
to doubt, as the company went forward , that a11 of the

10

compression technology that you bought, as M r. Montgomeryls

11

50/50 partner.
, got put into eTreppid, or then Intrepid, was

12

then being -- actually then being used?

13

A.

Can gou please say tThat again .

14

Q.

Have in your mind what you bought from Mr. Montgomery

15

that was on CD NuH ner 1, compression technology .

16

doubt in your mindz as you sit here todayr that you got that

17

and it was then betng used in the company over the ensuing

18

years?

19

Is there any

MR . PEEK : Your Honor, he didn't get it . Intrepid got

20

it, or eTreppid got it. He keeps referring to Mr . Trepp as

21

though he's buying it or Mr . Trepp is recekving it .

22

into the company.

23

THE COURT:

I understand that.

24

MR . FLYNN : There are two principals.


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2

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THE COURT :

)..
-

I understand .

BY MR . FLYNN :

Q.

Did llou have any doubt that the company got -- when

you put the 1 .3 in some form over some time in, and so the

company was using that technology that was on CD Number 12

A.

7
8

Do i believe?
Can ( ask a question, Judge, because 1'm not sure I

understand .

THE COURT : Well, if you don dt understand the

10

question, Jus'n simply say ''I don't understand the questiony''

11

and hedll rephrase it.

12
13

14
15

THE WITNESS:

Can you p lease reword it .

BY MR . FLYNN :

Q.

Yeah . Sometimes as the day goes on, given my advanced

agee my questtons get worse, but I b11 try to make it simple .

16

Is there any doubt in your mindz as you 3it here

17

today, that yau got and the company usedp for your l .3 m iAlion,

18

the compression technology that was on CD Number 12

19
20

21
22

A.

Yes .

I believe we got -- if there was a CD 1, I

believe we got what we bargained for .

Q.

Now, you do not have a security clearance equal to

Mr . Montgomery bs: do you?

23

A.

At this time?

24

Q.

Corlect .
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''
.

.r7

A.

No .

Q.

Do ytlu know wtka t h1s security clearance is?

A.

Y es r T SSC 1*
..

Q.

M d what securty clearance do you have?

A.

TS , dRnd my SCf is pending .

Q.

Have you ever had any conversations wi th

Mr . M ontgomerg in the presence of any government official --

just yes or no --

A.

Y es .

10

Q.

-- about the governmentls attitude toward you as a

11

principal at eTreppid?

12

A.

Not that I can recall.

13

Q.

Have you ever had any attitude -- strike that.

14

Have you ever had any discusson with Mr . Montgomery

15

in the presence of a government official -- just yes or no --

16

about your background aL Drexel vis-a-vis government contracts

17

at eTreppid?

18

A.

Yes .

19

Q.

Now, is Mr . M illiken -- strike that.

20

21

Did you tell M r. M ontgomery that Mr . M illiken was

putting $12 rlillion into eTreppid for 5 percent of the company?

22

A.

No .

23

Q.

Mr. Milliken s a friend of yours?

24

A.

I wouldn 't ca1.l him a friend .


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.-

Q.

Well, you were b0th at Drexel together?

A.

We worked toqether, that ts correct .

Q.

AL Drexel'?

A.

Yes .

Q.

Did you tell Mr . Montgomery that M r . M illiken gave you

$30 million to go on an extended -- a cruise to avoid being a

witness?

A.

Wh at ?

Q.

During the Drexel period .

10

11

MR . PEEK :

Your Honor, this is way out of line and

way --

12

THE COURT : Well, I don rt understand the relevance of


'
..

13

this at all: ' really don 't .

14

MR . PEEK :

-- time , collateral -- collateral to this

15

case, Your Honor, as well, and nothing to do with this case at

16

all.

17

MR . FLYNN :

The relevance is -- as I understand it s

18

it's highly unlikely that the government will ever make a deal

19

exclusively with Mr . Trepp with regard to technology theylre

20

seeking an injunction on.

21

MR . PEEK : Your Honorr they will do and say anything

22

without evidence, and it -- frankly, it's getting to the point

23

now of how many times can you just say it and hope that maybe

24

som e of it wizl stick, wthout it really coming from the


69

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witness stand?

MR. FLYNN : Mr . Montgomery will so testify .

MR . FEEK : This gen tleman has done business with the

government. The contracks are with him . He's the majority

owner or has the most stock in it, and he has relationships

with General Bath , Conqressman Gibbonsy w ith John Hennessey and

others .

So this is --

THE COURT : Will you trust me that I know the

difference between stattements of counsel and evidence?

10

MR . PEEK : 1 will, Your Honor.

I apologize .

I don 't

11

mean to speechify: but it's getting a b it much, late in the

12

day .

13

THE COURT:

ltfs late in the day . And 1 think the

14

more we can avoid this kind of stuff, the better we dre going to

15

be in moving the case along .

16

And 1 understand that therets a statement been mnde,

17

and 1111 consider it for what evidentiary value, if any, it

18

m igh t h ave .

19
20

MR. PEEK: Againr I1m going to object to the same


thing .

21

THE COURT : I understand . I understand .

22

MR . PEEK:

23

THE COURT: The objection is overruled. I think if

24

Is it overruled or sustained?

you use the standard for relevancez there might be som e


70

CECILIA 7052,, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 72 of 207

.>..p
.';

u -,

relevance, but let 's not spend too much more time on this .

2
3

M R . FLYNN :

I won 't, Your Hono r .

B Y MR . FLYNN :

Q.

Mr . Trepp, how many years has it been since the

governmentz Oa certain types of highly ckasskfied technology ,

has been dealing w tth you and Mr. Montgomery?

sir?

How many years ,


'

A.

lt's been months .

Q.

No# starting from the beginning, with the first

10

government contract.

11

present, from January -- from now, February 20062

12

A.

Okay.

How far back does that go, from tbe

Can you ask the question again: please .

13

THE COURT : You want to have t read back?

14

MR . FLYNN : No, that's okay .

15

faster .

16

BY MR . FLYNN :

17

Q.

1 think it would be

Over how many years have you personally been dealing

18

with the United States Government, any department thereof, w ith

19

regard to highly classified software technology?

20

A.

I believe it was December of 103.

21

Q.

Okay , Let 's take the December of :03 . And it is now

22

February of 106: correct?

23

A.

Uh-huh .

24

Q.

During that tim e framer you never got the highest


71

CECILIA MOSZP NV CCA #246 (775) 827-0672

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!

h >IF

security clearance, but Mr . Montgomery did, correct?

A.

Yes.

There was a reason for t'hat , but yes .

Q.

That entitled him, within eTreppid, to deal with the

government on these hbghly ckassfked materiaks with thks

highly classified technology: but not you?

A.

That's nonsense.

Q.

What weren 't 'gou entitled to deal with?

A.

Anything Lhat was Scl-rated, until I got my SCI

clearance .

10

Q.

11

'

Wellz as we sit here today, dc) you have a clearance

equal to Mr. Montgomery 's?

12

A.

No .

13

Q.

Okay. What can he deal with that you can 't deal with?

14

A.

Something that he's read into that 1 wouldn 't be .

15

Q.

Okay. Now, do you know what he s been read into that

16

you haven 't been read into?

17

A.

Nothing .

18

Q.

Nothlng?

19

A.

Nothing .

20

Q.

And how do you know that?

Is this based on the

21

lunches with Mr. Montgomery every year for the last seven

22

years?

23

A.

24

No : '
.E -Ilve dealt with the government on -- on a

contractual basis or on a day-to-day basis as to asking usw


72

CECILIA VOHL. NV CCR #246 (775) 827-0672

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w -.e '

* ''

meaning the company, what they would lkke to do for ther .

Q.

A11 right . Let's take the time frame, September .04.

A.

Y es .

Q.

Just yes or no : Did a certain agency of the

government want to purchase certain technology that

M r. Montgomery had been dealing with, with the government on?

7
8

A.

a difference .

9
10

11
12

Can 1 ask you a question: Your Honor: because it makes

A re you saying the government was dealing with


Mr . Montgomery on a deal that had nothing to do with eTrepp id?

Q.

I1m saying thall Mr . Montgomery was working w ith the

government on the contents of the technology.

13

A.

Yes .

14

Q.

And did you speak with the government about how much

15

you wanted for the content'bf that technology?

16

A.

Yes .

17

Q.

You did tell the government how much you wanted for

18
19

20

the technologyz correct?


A.

I told the government what we would be happy to sell

the technology for.

21

Q.

How much?

22

A.

A hundred million dollars .

23

Q.

In connection with that conversation , did you tell

24

them the government would have to post a bond for $1 billlon?

..

73

CSCILIA v()Sl, Nv ccR #246 (775) 827-0672

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A.

There was a specific discussion relative to three

different pieces of this conversation. One was, we would

license the Lechnology to them for 10 laillion .

the technology to them for 100 million . And we wanted to have

a bond posted relative to having our technology secured in the

sense that it wouldn lt get out of the government 's hands .

We wou ld se ll

Q.

How much was the bond?

A.

A z they never offered us a penny; B, we got a

month-to-month license agreelaent to do the job; and C, they

10

laughed and said they wouldn 't give us a nondisclosure

11

agreement for any price .

12

Q.

How much p f a bond did you ask for?

13

A.

How much of a bond?

14

500 million .

lt was elther 100 million or

I don 't remember .

15

Q.

Was it one billion?

16

A.

I highly doe lt it . I don 't remembery though, exactly .

17

Q.

You ont remenl er. A11 right.

18

19

Now , in the context of this conversation r which yDu

say is 100 m iklion to purchase --

20

A.

Well, we offered to sell it.

21

Q.

Let me finish, please, sir.

22

A.

Yep .

23

Q.

Would you say t was 100 million to purchase --

24

forgetting for the moment the license thing, or whatever, in


74

CECILIA UOSLZ NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 76 of 207

some bond somewhere -- behween 100 million or 500 million or

possibly a billion, at. some point, did you tell Mr . Montgom ery

not to process any more of the things the government wanted him

to process?

A.

Absolutely not .

Q.

At same pointu did the government stop paying for what

7
8

Mr. Montgomerg was processing?


A.

T don't understand what that question means .

The

government was only payng eTreppid . They were never paying

10

Mr. Montgomerg anything.

11

government terminate our contract, is that the question?

12

Q.

Bul: I don rt understand .

Did the

Well, I1m asking yolb did you terminate the contract

13

because you wanted $500 milllon and you said to Mr. Montgomery,

14

''Don 't do any work for themer?

Did you do that?

15

A.

Did 1 ask for $500 million and terminate the contract?

16

Q.

Yes.

17

A.

Absolutely not .

18

Q.

You are aware the government was -- that

19

Mr . Montgomerg was processing things for the government during

20

this time period?

21

A.

I 'm aware that eTreppid was processing things for the

22

government .

23

Q.

Who <as doing the work?

24

A.

Dennis -- Dennis wa3 doing the bulk of the processing .


'

75

CSCILIA 75S;,z NV CCR #246 (775) 82 7-0672

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Q.

How m any hours a day was he working?

A.

It depended upon what was the time frame and what they

were asking h tm to do .

end, veryy very little .

In the -- the beginning, a lot; in the

Q.

Did Ae generally work seven days a week at 18 hours a

A.

No .

Q.

Now -- but you know that -- how often were you there?

A.

In the beginning, we were b0th there an enormous

10

11
12
13
14

day?

amount of time .

Q.

In the first six months or four months until June

of 199 / you were gone?


A.

You pre talking about a contract that was dealing in

2002, not in 1999.

'

15
16

Q.

I understand that. And you were there a11 during that

time frame in 2002?

17

A.

What does that question mean?

18

Q.

Were you there seven days a week at eTreppid with

19

Mr . Montgomeryz processing this classified informationz seven

20

days a week, 18 hours a day?

21

A.

No .

22

Q.

How much did the government pay during the year 2003

23

24

for the work Mr . Montgomery was doing?

A.

The government paid eTreppid a contract of -- I think


76

CECILIA VOHL, NV CCR #246 (775) 827-0672

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.

it was a mill Lon eight .

Q.

government?

A.

5
6

Was 'lhe ftrst check two and a half million from the

There was no chance that the first check was two and a

half mllion, no chance .


THE COURT:

Excuse me .

I need to make a phone call at

5 o 'clock .

longer are we going to take to get done?

9
10
11
12

.I

I'z's now about one minute after that.

MR . PEEK :

How much

Your Honor, this is our last witness: so I

can 't speak for Mr. Flynn .


MR . FLYNN : > d l'm going to put M r. Montgomery on .
M y direct is probably 30 to 40 minutes .

13

THE COURT : A1i right .

14

MR . PEEK :

15

cross-examina Lion .

1 w ill try to restrain myself on

16

MR . LOGAR : Which will be difficult.

17

MR. PEEK : Which is going to be difficult .

18

THE COUR T :

19

Mr . Logar make that comment .

20
21

was go ing to comm ent on that .

1'11 1et

A 11 right . Letls be in recess until 20 minutes after,


and then we 'll finish up for the night .

22

(A brief recess was taken at the hour of 5:03 p .m .)

23

THE COURT: A 11 right . Please be seated. Al1 right .

24

Please continue .
77

CECILIA ltl.
H7a, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 79 of 207

1
2

3
4

MR . FLYNN :
BY MR . FL YN N :

Q.

Agaia, M r. Trepp, letls go back to September '04 . Was

a certain government contract ending in September '04?

A.

Y es .

Q.

And 5id the government want to extend it?

A.

They asked ij w could do a small amount of additional

9
10

11

12
13
14

work relating to that contract.

Q.

16

And :id they want to extend it for a m inimum period of

th ree m onths ?

A.

I don't recall if that was exactly what it was, but

they did want to extend it for a limited period of time.


Q.

Were you in the presence of Mr . Montgomery -- strike

that .

15

Did you and Mr . Montgomery have a discussion about


extending it?

'

17

A.

Probably .

18

Q.

Do you recall anything about that discussion?

19

yes or no .

20

A.

Not in detail.

21

Q.

Did either one of you say no to the governm ent, you

22

23

'

Thank you, Your Honor .

24

Just

wouldn lt extend it?

A.

At some point, we -- we both agreed we weren 't going

to continue it.
78

CWCILIA &r()J.
f2,z NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 80 of 207

Q.

You and the government or you and Mr . Montgomery?

A.

M e and th e gove rnmen t .

Q.

Agreed you Wouldn't continue it; is that your

testimony?

A.

They wanted to terminate the contract and said there

were -- were some other things that they would like us to do up

u'ntil some specific date, and I don lt remember what that

specific date was.

Q.

Did M r. Montgomery want to extend the contract?

10

A.

I donlt think that option was available to us to

11

extend it .

12

Q.

13

issue in September 104'?

14
15

Just yes or no: Was this a national security current

MR. PEEK: Objection. What is ''thisn?


BY MR . FLYNN :

16

Q.

The nature of what the government wanted you to do.

17

A.

It had to deal with potential national seeurity

18

interests .

19

Q.

20

Can you imagine a higher priority than what these

interests involved?

21

A.

Yes.

22

Q.

Is this when you told the government 100 m illion?

23

A.

Absolutely not.

24

Q.

When did you tell the government 100 million?


79

CECILIA VOSZ, NV CCR #246 (775) 827-0672

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1
2

3
4

A.

We had been negotiating for a protracted period o f

time prior to September of 604

Q.

Okay . When did you first tell the government

l00 million?

A.

Either the end of 903 or the beginning of 104. And

when you say ''i00 milllonz'' that was the price we had offered

to sell a11 of our technology to them for.

8
9

Q.

Under the oath that you signedy you cannot disclose

the contents of those negotiations, correct?

10

A.

I 'm not sure that that is correct.

11

Q.

Do yau know whether, under the oath in the clearance

12

that Mr . Mont7omery had: he could discuss those negotiations?

13

A.

He didn 't sign for the company; I did .

14

Q.

That wasn lt the question, M r. Trepp . Could he discuss

15

them with the government?

16

A.

He could discuss anything with the government.

17

Q.

Nowf at this point in time, September 104, the two of

18

you started as 50/50 partners, founders in eTrepp id

19

Technologies dealing with data compression on CD Nl3mher 17 is

20

that correct?

21

A.

We started as 50/50 owners.

22

Q.

In September 104, what is your testimony as to what

23
24

M r . Montgomery then owns?


A.

llm not exactly sure in September of '04 # but I


80

CECILIA MOSZ, NV CCR #246 (775) 827-0672

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...w-

- )

believe he owns approximately 30 percent right now .

it was the salae thenz but I'ut not positive of that fact.

3
4

Q.

I believe

He got somehow -- he somehow went from 50 to

3o-something percent?

A.

Yes .

Q.

Now, I1m not going to spend a 1ot of time on this

because I think, at some point, it 's going to become the core

of the case. But 1et me just ask you this: In the first stock

transaction, how djd Mr . Montgomery go from 50 percent to

10

40 percent?

11

A.

I don rt know in the first transaction that he went

12

from 50 to 40 .

13

how he was diluted over time.

14
15

Q.

I believe I have a Cairly good understanding of

Was some of his stockr when it went from 50 to 4Oz

sold for l.5 m illion to one of your friends?

16

A.

No .

17

Q.

To someone that you know?

18

A.

No .

19

Q.

Who ds Wayne Primm?

20

A.

Wayne Primm is a good friend of m ine .

21

Q.

Was Mr. Montgomery's stock sold for $1.5 million to

22

Wayne Primm?

23

A.

In one transactionz yesr that 's true.

24

Q.

And Zhen M r. Montgomery wrote a check back to you?


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CECILIA Uofffrs NV CCR #246 (775) 827-0672

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A.

B ack to whom?

Q.

Well, Friendly Capital .

A.

To repay a oan that he borrowed .

Q.

Let me finish the question.

A.

Okay .

Q.

Friendly Caapital is you?

A.

I am the president of the general corporate partner of

Friendly Capital LP.

Q.

And when Mr. Primm , your friend, paid the 1 .5 millionz

10

M r . Montgomery paid back Friendly Capital $975,000 .297 is that

11

correct?

12
13

A.

I don 't know that that 's the exact number, but I

b elieve thatfs very possible .

14

Q.

And t 's your testimony that was for loans?

15

A.

The repaF nent back to Friendly Capital?

16

Q.

Yes.

17

A.

Yesz that was to repay a loan and probably interest .

18

Q.

So you didn 't want to see Mr . Montgomery diluted,

19

according to your direct testimony?

20

A.

That is correct .

21

Q.

But you arranged the sale w ith one of your buddies for

22

him to sell 10 percent of the eTreppid stock?

23

A.

He did not sell 10 percent of the eTreppid stock .

24

Q.

Did he go from 50 to 40?


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Case 3:06-cv-00056-PMP-VPC
Document 644-21 Filed 05/28/08
Page 84 of 207
J
1

A.

Yes, but you -- if you would like to ask me how he got

from where he was to where he is: 1'd be happy to go through

that, if 1 can .

with -- anyth kng to do with his sale to Wayne Primm .

He did not go from 50 to 40 having to do

Q.

How many different alleged dilutions took place?

A.

Thera weren rt any alleged dilutions.

or gifts or capitaL raises.

9
10

There were sales

Q.

1'm not going to spend much more time on this, but

when you -- your company was originally 50/50, just the two of
you?

11

A.

Yes.

12

Q.

Over time, he gets down to 30, and a 1ot of your

13

friends, a11 of a suddero have stock interests.

Is that

14

basically correct, according to Exhibit A to the amended

15

operating agreement that you put into evidence?

16

A.

Yesr that is correct.

17

Q.

And your partner, you didn 't want to get diluted; is

18

tha t co rrect?

19

A.

That is correctr at a point.

20

Q.

Al1 right. Nowr did this -- just yes or no -- become

21

the subject of huge contention between you and Mr. Montgomeryz

22

of Mr . Montgomery saying that you weren t paying -- th e company

23

wasn t paying him what he deserved to be paid?

24

A.

Absolutely not.
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1
2
3
4

Q.

Okay ' And did money become the subject of contention

between the two of you throughout 2004 and 2005?


A.

Yes, it was a big issue for Dennis because he was

desperate for money .

Q.

So it was an jssue of contention between the two of

A.

lt was no contention for me. He just kept asking me

fo r mon ey .

Q.

you?

Okay . Noku it the context of him asking you for

10

money s was there a discussion during these government contracts

11

about his ownership of the technology relating to the

12

government contracts aud your acknowledgement that he owned it?

13

A.

Irm not sure I understand what you bre saying.

14

eTreppid owned a11 of the technology . Dennis owned none of the

15

technology .

16

Q.

Was Lhere a discussion between you and Mr . Montgomery,

17

when this issue became very heated about him being owed moneyw

18

about who owned the technology that was underlying these

19

governmenk contracts?

20
21

MR. PEEK: Objection . Compound. There's two


questionsz abaut him bei.ng owed money or --

22
23

24

THE COURT : Agreed, agreed . Break the question down .


BY MR . FLYNN :

Q.

In the context of any discussion between you and


84

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Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 86 of 207


% ...
.

... .

M r. Montgomerll, were you fighting over money?

A.

No .

Q.

Was there a discussion about who owned the technology

that was fueling the government contracts?

A.

Abso Lutely not .

Q.

Never?

A.

Nev e r.

Q.

Now , did Mr . Montgomery -- between 2004 and throughout

9
10
11

12
13

2005, was he making demands on you, eTxeppid or whatever, for


money in connection with moni.es paid by the government?
A.

Absolutely not. He asked me for money because he

needed to borrow more money than he had borrowed in the past.


Q.

I understand your testimony. Com ing down to the end

14

of 2005, were you negotiating with the government on any

15

potential contracts that are classified?

16

A.

No .

17

Q.

Were you having discussions between Sep tember 05 and

18

December 'O5 -- the end of December 05, about governm ent

19

contracts: sales ta the government of technology Mr . Montgomery

20

claimed that he owned?

21

MR. JAKOPIN : Objection . Foundation.

22

THE COURT :

23

24

1 think -- no, thatls a question . Were

you having discussions.

I'm going to allow that.

THE WITNESS : eTreppid was having discussions with the


85

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Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08


Page 87 of 207
l

government about four potential contracts that the government

was interested in pursuing.

BY MR . FLYNN :

Q.

Okay. And I don bt mean to be contradictory: but

didn't you just say a mlnute ago that eTreppid was not having

discussions with -- w j.th the government about government

contracts in the fall or. 20052 Didn't you just say that in the

question before that?

THE COURT :

1 think that ls argumentative .

10

MR . FLYNN :

lt is, Your Honor .

11

argumentative .

12

BY MR . FLYNN :

13

Q.

It is adm ittedly

Mr. Trepp, in the fall of 2005, you now acknowledge

14

there w ere discussions between eTreppid and the government

15

about four contracts that were basically related to technology

16

Mr . Montgomery was involved in; is that correct?

'

17

A.

That eTreppid was involved inz yes .

18

Q.

Okay. M r. Montgomery was the chief technical officer:

19

he was the then-30 percent partner, and he was the one

20

exclusively in charge of the highest security clearance at that

21

time?

22

23
24

MR . PEEK:

Is there a question there, Your Honors or

lust a whole series of predicates?


THE COURT :

I would like a question, if you couldz


86

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Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 88 of 207

please.

B Y M R . FLYNN :

Okay . Mr. Trepp, did -- in the fall of 2005, d id you

have the source codes that would have enabled you or

Mr . M ontgomerg to make a deal with the government?

A.

Yes .

Q.

You had them personally?

A.

No.

Q.

Who had them?

10

A.

The company.

11

Q.

Where were they?

12

A.

1 don 't know exactly .

13

'

Q.

14
15

I could tell you where I

believe they Jere .

Q.

Were they on any of the CDs or DVDS or whatever you

had in your safes?

16

A.

Of course not .

17

Q.

Did you have discussion with Mr. Montgom ery about that

18

technology that was needed for those government contracts and

19

how much he wanted -- Mr . Montgomery wanted?

20

A.

Mr . Montgomery wanted for what?

21

Q.

How much money he wanted, if you or whoever was going

22

to get 100 million r 50 million, a licensing deal, whatever, how

23

those revenues would be split, did you have those conversations

24

with Mr . Montgomery?

'
87

CECILIA VOHL, NV CCR #246 (775) 827-0672

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A.

Absolutely not.

Q.

Now, before we get to whatever it was that broke you

two folks apart -- I take it from your testimony, it wasn 't

money?

A.

It was -- it was greed .

Q.

Or it was money? Greed: money?

7
8
9

10

11

It was money?

Did those -- clid that greed arise during the fall of


20052
A.

I think what Ilve learned in the last three weeks,

Dennis has had greed since the day I met him beyond belief.

Q.

Itm talking about your discussions with him in the

12

fall of 2005. Did that, what you bre characterizing as greedw

13

take place during the fall of 2005?

14

A.

Ilve said it before . We never had a discussion about

15

money relating to the government contracts and what he was

16

going to get .

17

in the business . And that was our deal.

18

Q.

He got a salary . He had a 30 percent interest

It didn 't change .

Yet, on December 28tb, you had hm sign a -- just

19

before you sp it up, an agreement and modification of a

20

promissory note and security agreement for -- how much money?

21

A.

It was a million three in principal that he owed me

22

and about a million five in interest on loans that started from

23

1999.

24

Q.

And just before you broke up, coming to the end of


88

CEICILIA &'(?f.
fz'
a, NV CCR #246 (775) 827-0672

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1
2

2005, you had him sign bhis document; is that correct?


A.

Yes, because he borrowed -- he borrowed an additional

150,000 on December 10th, and I said, ''You gonna sign a new

note for the monies you just borrowed?''

On December ilthz he had sent me an e-mail asking me

for $275,000. He saicl, ''I know I borrowed a 1ot of money from

you in the past .

8
9

Q.

lt rs very, very important .''

Now , sir, how much money , as of December 28th , 2005,

before you Gent on your cruiser had you taken out of eTreppid?

10

A.

In what form'?

11

Q.

Any form .

12

A.

I was paid a salary in 2003, :4 and 65 of $400,000

13

each year. And the reason why I took any salary -- 1et me step

14

back .

15

In the years '99, 2000, 2001, 2002, I took zero salary

16

because the company wasn't making money and I wanted not to

17

have to go back and make more capital calls and dilute

18

ahareholders .

19

ln 2003, '4 and 5, I was specifically asked by Patty

20

Gray to come up with a number that would be necessary so we

21

eould get our G&A number up on government contracts . You have

22

a cost-plus contract, meaning it's the cost and then you're

23

allowed to cbarge up to a certain percentage for G&A expenses.

24

By me not taking a salary, our company could not get the


.

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'

'> .)

->

benefit o f the value of up to 12 percent, which was a fair

market value.

Without my salary, it was 8-point-som ething .

And it was suggested by the attorneys and by myself

that we should a1l get together, give me this money so we could

at least get the G&A out of it. The net effect of that G&A

payment of a grossed-up value was that, yes, 1 was getting a

$400,000 salary, but there was more money going to the company

because of that.

Q.

During this period the company didn rt have any moneyz

10

how much were you chargng off of the company on the Gulfstream

11

jet?

12

A.

On the Gulfstream jet?

13

Q.

How much in your favor on the Gulfstream was being

14
15

expensed against eTreppld and your partner, M r. Montgomery?


A.

There was no money charged for the use of the

16

Gulfstream jet other than when I used iL to go on busness

17

trips either with Mr . Montgomery or other employees .

18

Q.

In one year alone, was it approximately one million?

19

A.

That sounds extraordinarily hkgh . We might have

20

signed a contractual agreement with a company for hundreds of

21

thousands of dollars for the use of the jet over a period of

22

time . There -- it's inconceivable to me that we paid a million

23

dollars in one year for the use of it .

24

Q.

In 1.999: Was it 560,0002


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2

A.

1 have no idea . 1 could certainly look it up and give

you an answer to that.

Q.

ln 2000, was it one million?

A.

Itts inconceivable.

Q.

Now, back to the fall of 2005, I understand from your

testimony that it was Mr . Montgomery's greed for money,

demanding money from you, that was the subjeet of discussion;

is that correct?

A.

That is not what T said.

10

Q.

I be Lieve you said it wasnlt a discussion in the

11

context of the governaent contracts, but it was a subject of

12

discussion; is that. correct?

13

A.

Noz it is not correct .

14

Q.

How did Mr. Morltgomery 's greed manifest itself to you

15
16
17
18

in the fall of 2005?


A.

I believe 1 found out the level o f greed in the last

three weeks: not in the fall of 2005 .


Q.

A gain: for time purposes, welre going to cut this

19

short for now . Let 's go to the end of 2005. How much was in

20

the company bank accounts from government contracts?

21

A.

How much was in the bank accounts? Around $5 million .

22

Q.

Isn 't closer to 9 million?

23

A.

Absolutely impossible .

24

Q.

Where is the 5 million today?


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A.

In the b an k accoun t .

Q.

How nuch did you take out in the last 60 days:

M r. Trepp?

A.

Where?

Q.

Out af eTreppid .

A.

Nothing .

Q.

ln the last 90 days?

A.

Nothing .

Q.

The last 120 days?

10

A.

1 mean, other than a salary, like everybody else .

11

Q.

How Much have you taken out?

12

A.

Did I get --

13

THE COURT : Other than a salary?

14

MR . FLYNN :

15

THE NITNESS :

16

Q.

18

this issue?

19

21

Zero .

BY MR . FLYNN :

17

20

Other than a salary .

Did you have a discussion with M r. Montgomery about

MR. PEEK: Objection. Which issue?


BY MR . FLYNN :

Q.

The issue of how much was in the eTreppid bank

22

accounts from government contracts and where it was going to

23

go, who was going to get it .

24

A.

Who was going to get what?


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Q.

The money in the bank accounts .

A.

Nobody was going to get it.

Q.

Who Iaade that decision?

A.

Me.

Q.

Because then you were 50 percent owner with your

friends and Mr . Montgomery was only 30 percent?

A.

I don t know .

Q.

Yeah .

A.

But what was the queston?

10

Q.

Is that why you had the right to make the decision as

11

12

Is that a question?

to what was going to be done with that money?

A.

There is a management committee we have . The

13

management colnmittee has the right to determ ine what tc do with

14

the money in the company.

15

least two years' worth of operating expenses in the bank

16

account, not use it for other than that.

17

I felt it was prudent to leave at

So, on a going-forward basis -- we only have $700,000

18

worth of contracts for the year 2006 in the company.

19

want to be put into a position of making capital calls to

20

create more dilution for the shareholders, and I certainly

21

didn 't want to start loaning millions of dollars back into the

22

company .

23
24

Q.

I didn 't

M r . Trepp , did you discuss with M r. Montgomery what

was going to happen to uhat you say is the 5 million?


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A.

Yeah, 1 told him we were going to leave it in the

bu siness until we have enough money where we can m ake a

distribution when it's sub stantial enough where we don 't have

to worry about operatng expenses going forward .

Q.

And when did you have that discussion?

A.

Novele er: December .

Q.

What did Mr . Montgomery say to you?

A.

I don 't rem eo ler him even coDrlenting .

Q.

Did Qe say something like, ''Ibve been working l8-hour

10

days for seven days a week for years wth technology that I

11

own, and 1 want my share of that money''?

12

A.

Absolutely not .

13

Q.

And so then the fight you got into that 1ed to him

14
15
16

being -- was Ne fired?


A.

I didn 't get into a fight with him .

1 have never

gotten into a fight with M r. Montgomery .

17

Q.

Was he fired?

18

A.

Y es, h e wa s fired .

19

Q.

Who fired him?

20

A.

I did .

21

Q.

Naw, when did you become concerned that

22

M r . Montgomery, by some trick or artifice or thievery, was

23

going to steal eTrepp id technology?

24

A.

He had already stolen it by the time I found out about


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/

-<'

xrz

1t .

Q.

So when was that, Mr. Trepp?

A.

January 10th or 11th .

Q.

So yclu haci no fear before then that he was going to

steal eTrepptl technology before January 10th ; is that correct?

A.

That 's correct .

Q.

And l/ou had no discussion with him prior to

January 10th which you would characterize as a conflict in

wh ich he said . ''I own Lhe technology, I want my money, give it

10

to m e''; is that your testimony?

11

A.

Yeah . If that rs what he said, it 's a b latant lie.

12

Q.

And yet, all of a sudden, after a1l these yearsw

13

Mr . Montgomerg is stea Ling the technology; is that your

14

testimony?

15

A.

Yes .

16

Q.

And his motive for doing it is what, sir?

17

A.

Um, hels desperate for money . Hew on a numb er of

18

different transactions that lfve recently found out, defrauded

19

a number of different people on work that he had done in

20

conjunction wcith the company.

21

Q.

So he --

22

A.

He was covering up .

23

Q.

So by doing it, he got himself fired, ended his --

24

whatever money he was getting from you and eTreppid and risked
95

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(
1

qetting whatever for allegedly stealing the technology: ts that

your testimonyp because he needed money?

A.

Yes .

Q.

Now , when did you first find out that he needed money?

A.

We11,, he 's needed money for a11 the years he 's been

borrowing it from me.

Q.

When you had him sign the document: Exhibit 18 --

A.

Yep .

Q.

-- on December 28th: did he ask you for money?

10

A.

No.

lt was 011 December 8th he sent me an e-mail that

11

said he wanted to borrow $275,000. On December lothw I gave

12

him $150,000. I then said to him, ''1 want you to sign an

13

amended note like the plior two notes that you am ended .''

14

Q.

Now, this 150,000 that you gave him --

15

A.

Yeah .

16

Q.

-- did you say you wanted stock in return?

17

A.

I wanted what?

18

Q.

Stock in return .

19

A.

The note that I had from the beginning of time always

20

had -- there ls a legal word for it, but a secured interest in

21

his shares.

22

Q.

Weren 't you parceling out money to Mr . Montgomery to

23

keep him hapry because he was demanding his share of the

24

profits from eTreppid from the government contracts?


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-- t

'

A.

Abso.
kutely not .

Q.

Mr . Irepp , dd you have any control over

M r. M ontgomery in his doing his work in his workstation in

connection with these contracts?

A.

I'm not sure 1 understand what that question m eans .

Q.

Well , did you direct him in any way, did you supervise

him in any waxp as to how to do the work?

A.

Supervise him y no .

Q.

Did anyone supervise or control or direct him in terms

10

of how to do Lhe work?

11

A.

No. He was the RCTO . It was his responsibility to do

12

the best job, you know . He had a fiduciary responsibility .

13

Everybody worked for him . He hiredz he fired, he delegated

14

people to do work. It was not my job.

15
16

Q.

The source codes that you re in court for that you re

trying to get --

17

A.

Yes.

18

Q.

-- is it your testimony that only Mr. M ontgomery has

19

those source codes?

20

A.

With the exception of what we lve been ab le to

21

re-create out of what 's been deleted . Otherwise, I believe

22

M r . Montgomely has those source codes.

23
24

Q.

And he's the only one, is that correct, that you know

of?
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f''

A.

That I know of, yes.

Q.

No one else on earth has them that you know of?

A.

That I -- that 1 know of# yes, thatls true .

Q.

No one at eTleppid Technologies has them that you know

A.

Correct .

Q.

So those source codes that you want are a very

of?

distinct set of codes that are required for a very specific and

distinet business purpose in connection w ith these classified

10

11
12

13

government contracts?

A.

very vast groap of different contraets .

Q.

14

15

16
17
18
19

20

Well, not just them. They could be used for a very,

Mr. Prepp, please .


THE COURT : Well --

BY MR . FLYNN :

Q.

That es what they 've been used for in the past at

eTreppid; is that correct?


A.

Theylve been used for them and other things for

eTreppld in the past, that 's correct .

Q.

Now -- and only Mr . Montgomery, aacording to youz has

21

the codes. A11 o f the work that's been -- belng done at

22

eTreppid and all of these doctors and sophisticated programmers

23

that you #ve ot employed, none of them have it; is that

21

correct?
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Case 3:06-cv-00056-PMP-VPC
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Page 100 of 207
I
.
.

A.

--.

>1

I do not betjeve they have anything other than what 's

been recovered through our recovery process: and I bekieve

M r. Montgomer'/ has it .

4
5

Q.

So we could call him a specialist in these particular

source codes; is that crorrect?

A.

T be tieve there are plenty of people that would have

the ability to understand the analysis, to understand what the

sou rce co des a re .

Q.

But ao one has in 30 years; is that correct?

10

A.

Well, how wou ld I know that?

11

Q.

Do you know of any person: in eTreppid or not, who has

12

the sophistication, the knowledge in hj.s brain, about how these

13

source codes work to process the things that Mr . Montgomery was

14

processing?

15

A.

To some degree, absolutely .

16

Q.

Who?

17

A.

Zehang .

18

Q.

Then Zehang could go out tomorrow and do it; is that

19
20

correct?
A.

I did not say that. He has -- I believe what you

21

asked me wasr does he have som e knowledge of. And my response

22

to that is yes. Do I believe other employees have some

23

knowledge of it?

24

kept it undeE his Wing in his private cubbyhole, not on a

I believe the answer to that is yes . Who

99

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.

source server?

Q.

(.....J

... .

That was Mr. Montgomery .

Than k you . Who else that you know of, other than

Mr . Montgomery, has the skill in the next year to put a11 these

source codes Logether so that these government contract items

can be processed?

MR . PEEK : Objection, Your Honor. Hes assuming facts

not in evidence that Mr . Montgomery has the skill to actually

write the C++ code or the MET code that 's being described here.

10

MR . FLYNN : 'l3hat ls absolutely correct, Your Honor.

Itls what he ;id for two-plus years .

11
12

MR . PEEK :

That 's maybe what his testimony is, but

that ls not what the testimony is so far .

13

THE COURT : Wellz I think -- go ahead and ask the

14

question, and we'll ti.e it up if we can .

15

BY MR . FLYNN :

16

Q.

Who else has the skills to put the complete package of

17

source codes together so that these government contracts can be

18

done, other than Mr . Montgomery?

19

A.

I don 't know .

20

Q.

The instruments and tools that Mr . Montgomery used

21

while he was at eTreppid, do you know what they are, to do this

22

government ptocessing?

23

24

A.

Is that a question about hardware, software?

understand the question .


l00

CECILIA VOSDZ NV CCA #146 (775) 827-0672

I don 't

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 102 of 207

l
2

Q.

Do you have arty idea how he d1d 1t, how he would take

things and process them?

A.

Well , T certainly can tell you what T believe that

he 's described to me . 1 also totally believe now that he 's

lied to me .

Q.

sit here under oath, how he did it?

8
9

10
11

Wellr let's just take -- do you have any idea, as you

THE COURT : How he dtd what?


BY M R . FLYNN :

Q.

How ae would process -- see, how he would process

things in connection with these government contracts.

12

A.

Just to the extent of what he told me he did .

13

Q.

In terms of the source codes: the line coding, the

14

technology that was used, do you understand it?

15

A.

No .

16

Q.

And you woulcl agree with me that that was, in effect:

17
18
19

20

the tool by which these contracts were done?


A.

I don 't think 1 have the knowledge to be able to

answer that question .

Q.

Up until the end of 2002, how was Mr. Montgomery

21

being -- even though he was a founder and principal, how was he

22

being treated in terms or being paid , as an independent

23

contractor?

24

A.

How was he being treated?

Thete was a period of time where he was being paidz T


11

CECILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 103 of 207

guess you would call bt as an independent contractor: because

he wasn lt getlling a W-Q from me; he was getting a 1099.

'

And 'zhere were various reasons for doing thatp one of

which was his attorney said, ''We11, this is what Dennis told

me.'' His accountant had told him that he had tax loss

carry-forwards front pri.or lawsuits where he had losses in them

and that he d kdn 't need to get the deductions because --

whatever the CPA said .

Q.

10

1099s?

11

A.

Who was -- do you know when he got K-ls, when he got


Do you know?
Well, I know he got -- I know he got -- wait . K-ls --

12

he 'd get a K-1 every year, lj.ke every other owner in the

13

entity, and a 1099.

14

neither the first year -- earlier years because of this tax

15

thing that he had told me .

16

That 's not a W-2 .

I believe that was in

But he 's gottert a W-2 certainly in -- well, to the

17

best of m y knowledge, in 103, 104, and 05 . 1 don 't know

18

ab out '01 and .02 .

19

Q.

To bring this to a close, Mr . Trepp , there was no one

20

at eTreppid who instructed Mr. Montgomery what to do in the

21

regular course of the fulfillment of his work on these

22

government contracts; isn rt that correct?

23
24

A.

Well, Im not sure that is correct.

I mean, if I told

him to do somethinq relative to the government contract, I


102

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w u'

2
3
4

'

would cer'tainly expect he was going to do it .

Q.

Well; you don 't even know what he was doing or how he

was doing it, do you?


A.

That 's abso lut:ely not true.

I certainly knew the end

result. He knew exactly what he was doing . He established the

contract that our company received and we performed on .

Q.

What you knew -- without gettng into content, what

you knew, for example, was if a certain item was processed for

the governmenlo

you would know the end result of whether the

10

information that was given to the government was accurate in

11

terms of what the government wanted .

12

you were told that by Mr. Montgomery; isn't that correct?

That s what you knew , and

13

A.

No .

14

Q.

Isn '! it true that at a certan time at eTreppid:

15

there was a certain governmental agency with certain employees

16

or agents who had nothinq to do w ith you, they only dealt with

17

Mr . M ontgomery?

18

A.

That 's absolutely ridiculous .

19

Q.

Isn 'L it true that you and Mr . Montgomery had a

20

discussion about what they told him and that you were not privy

21

to and he told you that he couldn 't tell you?

22

A.

No . That 's absolutely ridiculous.

23

Q.

Do yau know, as you sit here today, the end results of

24

the confirmations of the accuracy of the inform ation that


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)
:.u.2

.-

Mr . Montgomer'g procluced , the dates, the contentsz what they

related to, and how otten they were confirmed?

3
4

MR . PEEK:
back?

Youz Honor, could 1 have that question

1 have no idea what was asked.

THE COURT :

I think there were a 1ot of questions.

MR . FLYNN : 1 111 try it again , Your Honor.

THE COURT:

You might want to break it down a little

bit beeause it's a little confusing to me too .

BY MR . FLYNN :

10
11

Q.

When Mr . Montgomery would process information for the

government --

12

A.

Uh-huh .

13

Q.

-- on one of these government contractsr first, do you

14

have any records: sir, of the end result of that processing?

15

A.

Yes .

16

Q.

Just in -- generically, what types of records do you

17
18

have?
A.

I have spreadsheets that he gave me, starting from the

19

first processing frame we had through the end . I think I have

20

every record that he ever generated, both in electronical

21

format, and I certainly have it, ream s of it, in paper form at .

22
23

24

Q.

Is this classified information that you claim you

have?

A.

Is it classified information today?

I believe it is

104

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)

u..>

.- '

not, although I:d like to check to see 1f, in fact, it was .

personally do not beljeve it is classified today .

3
4

Q.

Let rs take 01162 aspect of one contract with the speeial

agency .

A.

Uh-hah .

Q.

In terms of confirmation of Mr. Montgomery 's results,

is it your testimony you have eTreppid documents relating to

that conflrmation?

A.

I don't understand the question, Your Honor .

10

Q.

Welly you know that eTreppid, under the clearances

11

that they have, is not entitled to store any classified

12

informahion?

13

A.

The nformation that eTreppid had was not classified .

14

The information -- the outputs of the information of that would

15

be classified as far as the government is concerned . We never

16

had that information classified for the simple reason, at the

17

time we were doing the work, we had no classifications

18

indiv idually .

19

MR . FLYNN : M ay I have a moment, Your Honor?

20

THE COURT : Certainly.

21

22
23

24

BY MR . FLYNN :

Q.

Who currently has the books and records of the

company?

A.

TheyRre in the building .


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j
'
l
2

Q.

And who has custody of them?

Is there a bookkeeper,

an accountant?

A.

Y es .

Q.

Who JLs the individual?

A.

We have -- we have a bookkeeper . Her name is

Su Perez. We have a CPA firD , which is Ashley Quinn . 1

certainly have access to anything I want whenever I wank it .

0.

And wbat books and records are there?

A.

Whatever we need to do to create our K-ls at the end

10

of th e year, Rnything relating to tax information .

We

11

certainly have our checkbooks, our deposits, our withdrawalsz

12

our wires, all of the expenses.

13

return, you have to have everything.

1 mean, to create a tax

14

Q.

Are there any E7 & Ls?

15

A.

Well, we couLd certainly generate one . I don 't know

16

if the accountant has qenerated a P & L . Well, he had to have

17

created a P & L to generate K-ls, so --

18

Q.

And they pre in the company?

19

A.

Well, they 're either at the CPA 'S or at the company

20

21
22

23
24

or -- I don Rt. know, frankly, which .

Q.

How many meetings of the board of directors have taken

p lace since 1.9982

MR . PEEK : Your Honor, this doesn 't have a board of


directors. This j.s a limited llability company.

Tt has member

l06

CECILIA VOHL. NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 108 of 207


.

ee

'

crrz

m anagers .

%HE COURT :

You might want to rephrase thatl.

But 1

just have a glneral questton, and that is, I don 't understand

the relevance o f a lot. of these questionsz so you could maybe

try to tie thdltl in so that 1 do .

6
7

MR . FLYNN : A lot of it has to do with


Mr . Montgomer grs testimony .

8
9

10
l1

THE OOURT : A12 rj.ghtr. A11 right .


BY MR . F'LYNN ;

Q.

Have there ever been any minutes kept of any meetings:

committee meetingsr shareholder meetings of eTreppid?

12

MR. PEEK : There aren 't shareholdersr Your Honor .

13

THE COIJRT :

i tlnderstand that . Just s imply rephrase

14

it . This sounds more j.ke discovery than anything else to me#

15

but go ahead .

16

MR . FLYNN :

17

THE COUIW : A1l right .

18

19

E'11 move on, Your Honor .

BY M R . FLYNN :

Q.

Did you ever discuss w ith Mr . Montgom ery the intrusion

20

detection sof'tware that h e had incorporated into certain parts

21

of the softwetre?

22

MR. PEEK: Objedtion . Lacks foundation, Your Honor,

23

that there wEts such a technology incorporated into the

24

software . H() already asked Sloan if whether there was . We


l07

CECILIA VOHrg NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 109 of 207


?

have Mr. Hennessey's ev.dence that suggests that there was not .

THE COURT:

I think he could ask the question did you

ever have a discussion about whether or not there was any

intrusion technology inserted into the software .

MR. PEEK :

1 don 't have a problem with that kind of a

questionz Your Honor, and it would be a lot easier if he could

just ask it that way.

THE COURT: 2 understand your oblectonz and if there

were a jury sitting herez Id sustain it. But 1 understand

10

what hefs askingr and I'm going to allow it.

11

BY MR . FLYNN :

12

Q.

Did 'gou have those discussions?

13

A.

No .

14

Q.

Never?

15

A.

I do not beleve it ever existed .

16

Q.

Was Uhere ever a discussion between you and

17

Mr . Montgomerg in a heated exchange wherein he told you that if

18

you or one of your people try to go access anything, the

19

software will melt down?

20
21

A.

A , Ilve never had a heated exchange with him , with the

exception of the January 10th exit; and B, absolutely not.

22

MR. FLYNN : Thatls a11 I havez Your Honor.

23

THE COURT: A l1 right.

24

////

////
l08

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.'
- )

vi> .* ',

RED IRE CT EXAM INA T 1ON

2
3

4
5
6

BY M R . JAKO P I.
31:

Q.

One question . Was the source code used for processing

on the eTreppid goverlm tent contracts developed at e'


Freppid?
A.

M solutely .

MR . JAKOPIN : No further questions.

MR. FLYNN : J object. Move to strike. Lacks

10
11
12

foundation .

THE COURT : Wel.l, 1et me ask this question : Do you


know whether it was or not?
THE KITNESS:

Well, I firmly believe a11 of the source

13

code at eTreppid was er


freppid ts. And if it was eTreppid source

14

code that operated anything for any customer, I certainly

15

believe that it was ours and it was used .

16
17
18
19

20
21
22
23
24

THE COURT : A1l right. 1 understand that that's your


belief, but do you have any actual knowledge about that?
THE WITNESS :

That there was a source code run to

operate the government equipment?

THE COURT : And that it was developed on eTreppid 's


equipment .
THE WITNESS: Well, I don 't see how it could be
developed anyplace else, Your Honor.
THE COURT : A1l right. A 11 right. I understand .
109

CECILIA M()sfw NV CCR #246 (775) 827-0672

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...,.,

... -.

MR . FLYNN : That's a11 1 have, Your Honor .

THE O
wOURT :

THE HITNESS : Am I done?

THE COURT :

THE WITNE SS :

THE COURT : You can step down .

A L1 r igh t .

J believe so .
Than k you .

(Witness excused .)

THE COURT :

MR . JAKOPTN : That concludes our casey Your Honor .

Ts that --

10

THE COURT : A 1l right . Do you have one witness?

11

MR . FLYNN : do, Your Honor.

I have one witness . 1

12

want to make a motion, but 1111 reserve on the motion, with the

13

Court s permission -- with regard to burden of proof, and 1'11

14

reserve on the motion .

15

THE COURT : A 11 right. Go ahead .

16

MR . FLYNN : We would call Mr. Montgomery to the stand .

17

MR . PEEK :

18

THE COURT : Until we're done.

Your Honorz hoW late are you going to go?

19
20

D E N N I S

L. M O N T G O M E R Y,

21

called as a wj.tness, having been duly sworn,

22

testified as follows:

23

24

THE COURT : l mean, I should say within reason . But I


1l0

CECILIA VOSLS NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 112 of 207


''

f
.

--

' --*)

can 't imagine that welLl be going later than I would be willing

to go .

MR . PEEK ;

Wel1., I understand that Mr. Flynn said he

was going to have M r. Montgomery for 3O, 40 minutes.

wouldn t anticipate a lengthy, lengthy, lengthy cross .

THE COURT :

MR . PEEK :

1 think you 're safe.


Okay .

D (RECT EXAM INATION

l0
11

BY MR . FLYNN :

12

Q.

State your name , please, sir .

13

A.

Dennis L . Montgomery .

14

Q.

Your age?

15

A.

Fifty-three .

16

Q.

Where do you live?

17

A.

You want the address?

18

Q.

Just --

19

A.

Reno, Nevada .

20

Q.

What 's your occupation?

21

A.

Well, I 'm unemployed right now .

22

Q.

What was your occupation?

A.

Chief technology officer at e'


freppid Technologies .

Q.

What's your educational backgroundz Mr . Montgomery?

23

24

'

l1l

CECILIA VOHL. NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 113 of 207

A.

I got. a bachekor -- an associaLe of science in

cardiopulmonaly technotogy, and I did uot complete a bachelor's

degree in biology .

4
5
6
7

Q.

And with regard to your career history, what type of

work have you done since college?


A.

I went to work in a hospital for two years as a

perfusionist .

Q.

What 's a perfusionist?

A.

I f11 restate that .

I went to work as a

10

cardiopulmonary technieian in a hospital, and as a

11

cardiopulmonary techncian, I had duties regarding respiratory

12

therapy, EKG , blood gas analysis, so forth . That was from '73

13

to :75: I believe . And from '75 to around '8O # I worked as a

14

consultant on medical equipment and medicine .

15

Q.

Okay . What s blood gas analysis?

16

A.

It 's a process by which you determine the gas levels

17

18
19
20

inside the b lood .

Q.

And what specifically was the nature of your work in

b lood gas analysis when you were working at the hospital?


A.

I was developing a series of programs that would allow

21

an automated method for calculating blood gas and several other

22

parameters .

23

Q.

24

At that time, what was your background in computer

prograamlng?
1l2

CECILIA VOA'
Z r NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 114 of 207


p. .

t* t

A.

Um, i was just learning it as I was going along.

Q.

And at some point, did you form a company?

A.

Yes: in '81 or :82, called Coyputermate .

Q.

And whatfs the business purpose ef Lhat company?

A.

To do -- write medical software for medical

instrumentation .

Q.

And did the company have clients?

A.

Yes.

Q.

Who were t:he clients?

10

A.

Corn tng, (-'orning Medical, Kodak, Dupontz American

11

12

Hospital, so lorth .

Q.

And at some point in connection with your work with

13

Corning and Computermate, did Corning enter into a licenslng

14

agreement with Computerm ate in connection with spectral

15

analysis of blood gasses?

16

A.

Yes.

17

Q.

And What was the nature of that agreement?

18

19

20
21
22
23
24

MR . PEEK :

Your Honorz best evidence is the agreement

itself.

THE COURT : Oh, I think he can deacribe the nature of


it . This is al1 background, isn 't it?
MR . FLYNN : Yes, Your Honor, but it 's the background
in regards tcI -MR . PEEK : It ls b ackground , Your Honor, related to
113

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!

% ><

v '

what the claila is as lramed by the opposition of certain

copyrights in this time frame .

cautious in mg objectjons more than -- itls not just

background .

they own -- there we go (being shown document).

6
7

It goes to the substance of their defense that

THE COURT: 1 think he's just showed you the document,


has he not?

MR . PEEK :

it s certainlg the document.

10

11

So that's why I am very

1 don lt believe so .

It ls an agreement, but

BY MR . FLYNN :

Q.

M r. Montgomery, does this file basically contain the

12

agreement on the nature of the work that you were doing for

13

Corning in coanection with blood gas analysis?

14
15

16
17

A.

That was the manual that described the software that

was used on tQe instrumentation .

Q.

And let me show you several documents that have been

taken out of that manual. And I'd ask you --

18

MR . PEEK :

19

I can at least examine it --

20
21

22
23
24

Your Honorz if hefs going to offer this so

THE COURT: Yeah.


BY M R . FLYNN :

Q.

And I'd just ask you if those pages come out of the

manual .
A.

Yes .
1l4

CRCILIA 7OS;,, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 116 of 207

MR . PEEK :

This is Exhibit 19:'

MR . FLYNN :

MR . PEEK : Has that even been offered yet?

THE CLERK :

MR. PEEK :

MR . FLYNN :

MR . PEEK :

MR . FLYNN : And then 1'm qoing to offer it.

MR. PEEK : Can you mark it first.

i'.xhibih 19.

Hasn't been marked .


Hasn 't been marked?
l 'nl going to offer it .
You bve got bo mark it.

ls it Exhibit 19?

10

MR . FLYNN : Do you want him to look at it first or --

11

THE COURT ; You guys Want to have a recess so you can

12
13

14

have a conversation?
MR . FLYNN : Do you want to read it first, or do you

want me to mark it?

15
16

17
18

THE COURT : Well, I think it might he up to me. Mark


it, and let 's go from there .

MR . PEEK : What I ask -- Ys he going to mark this


d ocum ent?

19

THE COURT :

Yes.

20

MR . PEEK : That's what I didn rt know .

I thought he

21

was just going to mark the pages out of it. Do we have a copy

22

of it so 1 can have a copy of it?

23
24

MR . FLYNN : I have a copy of the pages which are


relevant.
115

CECILIA MOSZ, NV CCR #246 (775) 827-0672

'

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 117 of 207


'-'.

THE CLERK :

(Defendant's Exhibit 19 was marked for

3
4

Jt 's Exhibit 19 .

identification.)
MR . PEEK :

You r Honor , resp ect fu lly , th is is wh at we

asked for las! week . And if he 's known about it and he's going

to use it as an exhibt, it 's lmportant that 1 have the entire

document to be able to cross-examine, as opposed to just

lim ited pages .

10

v ')

THE COURT :

.
'
It appears that you have the document

itself right Lhere in front of you --

11

MR . PEEK :

12

THE COURT : -- and you 're holcling it --

13

MR . PEEK :

14

THE COURT : -- and he 's letting you look at it . And

15

1 do .

I dc).

we bll decide tater about getting you a copy.

16

MR. PEEK: lve just now seen it: Your Honor.

17

THE COURT : A Ll right.

18

MR . FLYNN :

19

I understand .

Let's mark for identification, first, the

pages that the witness is going to testify about.

20

THE COURT : Mark those 20 .

21

MR . FLYNN :

2O, Your Honor .

q
1
.

22
23
24

(Defendant's Exhibit 20 marked for identification.)


MR . FLYNN : And the record will reflect I gave a copy
of those pages to Plaintiff's Counsel .
116

CECILIA VOS/Z NV CCR #246 (775) 827-0672

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.-. ''

THE COURT : A11 right.

MR . FLYNN : Whlle he 's looking at that, why don 't we

THE COURT : How are we going to mark thoser 21 through


what ?

THE CLERK: He just gave me one document.

THE COURT : Mark it 21, then.

MR. FLYNN : Yeah, just 21, I think.

(Defendant's Exhibit 21 was marked for

10

identification .)

11

MR . PEEK : Has this been identified as to what it is?

12

MR. FLYNN : It's just been marked.

13

MR . PEEK :

14

MR . FLYNN : Tell me when you rre ready.

15

MR . PEEK :

16

Let me see the exhibit .

mark the copyrights for identification .

N ..)

Okay .

I'm ready.

BY MR . FLYNN :

17

Q.

With regard to Exhibit 20, Mr. --

18

A.

Is this the manual?

19

Q.

Yes, the pages from the manual .

20

A.

Yes.

21

Q.

Are those, in fact, pages that have been taken out of

22

Exhibit l9?

23

A.

Yes .

24

Q.

They rre copies thereof?


117

CECILIA MOSJJS NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 119 of 207


.
..
b
,
1

A.

Y es .

Q.

Describe what they are .

A.

It's a series of program s that patient identification

in form ation was put inr or calibration data, and the system

analyzed the blood and then produced the results .

Q.

Can you describe to me, from a computer programming

point of view, how these pages describe the technology used to

do th ings like gas analysis?

A.

The column in the middle, which represenks the output

10

of the data, is spectral analysis output of data: and that data

11

has patterns ln it. And you generate --

12

MR . PEEK : Your Honor, before we testify from the

13

document: could we have the document at least offered so that

14

we can deterpine whether or not it is or is not into evidence?

15

MR . FLYNN :

1''
L1 offer the document, Your Honor .

16

THE COURT: A1 right.

17

MR. PEEK: Your Honor, I would Object to this as

18

irrelevant tc this proceeding and so remote in time as to have

19

no relevance to what is at issue here in terms of pattern

20

recognition and our source code . This doesn 't define the

21

actual source code . Someone could compare what is being done

22

here with what is actually being performed by the source code

23

of eTreppid .

24

THE COURT : Well, it seems a little remote.


l18

CECILIA VOHL, NV CCR #246 (775) 827-0672

It seems

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 120 of 207


*

unrelated . But 1 beleve that under their theory of the case,

that it's not . And T'm goinq to allow him to develop that, so

I 'm go ing to allow the exhibit .

MR . PEEK :

The other concern 1 have , Your Honor, is

that what we have, which is Exhibit 21 -- and f the Court

would look at the seeond page of that, it relates, if you will,

Your Honor, to apparently who the owners are o f the various

copyrights .

Dennis Montgonery or the Montgomery trust.

Fou w ill see here that the owner is not


It is, ln fact,

10

Computermate, Computermate, Computermate, Computermate in every

11

one o f these .

12

Where is the link as we go showing an assignment back,

13

if you will, to the Montgomery trust?

14

fact, owns them, if that 's what the Library of Congress says

15

the ownership of the copyrights is today .

16

The Montgomery trust r in

So again , getting back to relevance: I think we 'd have

17

to start the thread of, I have the copyright , I own the

18

copyright, tkts is the copyright, as opposed to thYs is the

19

copyrlght, without at leash establishing the predicate of

20

ownership .

21

THE COURT : I remember the testimony with regard to

22

what Computermate is.

I see Mr . Montgomery 's name on it .

23

think: in terms of relevancep the relevance has been at least

24

established enough to my satisfaction r I'm going to admit


l19

CECILIA VOSXS NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 121 of 207

Exhibits 20 and 21 . And then --

MR. PEEK ;

though , Your Honor.

THE COURT:

He 's not the o-ner of the copyrightg,

J admitted them . And whether he 's hhe

owner or not wll i)e developed in the testimony, and then I 11

make a decision as to --

MR. PEEK :

THE COURT :

Whether to strike them or not?

I don 't know about striking themz but

whether or no L they play into the decision 1'm going to make .

10

(Defendant's Exhibits 20 and 21 were admitted into

11

evidence.)

12

BY MR . FLYNN :

13

Q.

With regard to Exhtbit 20z Mr . Montgomery --

14

A.

Yes .

15

Q.

-- would you describe to the Court how Exhib it 20

16

explains the nature of the software technology that was being

17

used for the spectral gas -- spectral analysis and how that

18

relates, first, to the copyrtghts in Exhibit 21 before we get

19

to the ownership issues.

20

A.

The software that did the detection of the anomalies

21

and the patterns in the spectral analysis is that software that

22

was developed originally . That is the original work.

23

Q.

That 's being described in Exhibit 20?

24

A.

Yes, that 's correct .

120

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--.1

M ,,/

..
.

Q.

And the copyrighting of that technology to do the work

that 's described ilt Exhibit 2O, which is the blood gas spectral

analysis, is based on the copyrights that are marked in

Exhibit 21; is that your testimony?

A.

Yes.

Q.

Now , today: who owns the copyrights that are reflected

on Exhibit 21?

8
9

MR. PEEK: Objection . The best evidence is the


document itself showinq ownership .

10
11

THE COURT : Overruled .


BY MR . FLYNN I

12

Q.

Who owns them , sir?

13

A.

The original copyrights were filed on behalf of

14

15
16

Computermate, which 1 was the owner .

Q.

And subsequently, was Lhere an assignment from

Computermate to you?

17

A.

Yes .

18

Q.

And when did -- did -- at some polnt, did Computermate

19

close and cease doing business?

20

A.

Yes .

21

Q.

When did that take place?

22

A.

I'm thinking around 185.

23

Q.

In regard to what we will call the source codes --

24

MR . PEEK; Your Honorr againz move to strike. Where


121

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Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 123 of 207


..-

'-

is the assignment back to Computermate?

THE COURT :

'
( don 't know . Maybe wedre getting there .

Let's see .

but I'm not asking it right now: so let's let this go forward a

little bit .

That was a question that I intended to ask myself,

Trust me that l'm going to give this evidence the

weight that 1 think t deserves: but I need to hear it before I

can understand its relationship and its relevance .

staring to these transactions, 1 need to get a11 the

So as a

10

nformation before I make a ruling that's going to be

11

prejudicial, or detrimental, to either side.

12

So, please, Mr. Flynnp go ahead.

13

MR . FLYNN :

14

15
16
17

Thank you, Your Honor .

BY M R . FLY NN :

Q.

Is there anything in Exhibit 20 that in some way shows

how the copyrights n Exhibit 21 work?


A.

Well, I own Computermate, and the copyrights -- I was

18

the au thor , and I retain ed r ights to tho se copyright s svnce the

19

beginning of time .

20
21

Q.

And after Computermate ceased doing businessz did you

retain those rights?

22

A.

Yes, I did .

23

Q.

Okay. Now , is there anything in Exhibit 20 that shows

24

'

how the copyrights are at play in the spectral analysis?


122

CECILIA MOSZ, NV CCR #246 (775) 827-0672

Is

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 124 of 207


'

.. ,

1
2

there anyth ing the Court can look at?


A.

Well, the source code was filed with the original

work.

And I mean, otler than the names, there's nothing

directly on here .

1 mean, I know the work .

Q.

readouts --

A.

Uh-huh .

Q.

-- printouts, are those based on the copyrights that

9
10

11
12
13
14

15

16
17

If you look at these various diagrams or 1ab report

are in Exhibit 21?


A.

A 11 of the software on that system reflects those

copyrights .
Q.

Now , what is the terminology that you use to describe

those copyrights?
A.

Well, they contain the anomaly and the pattern

detection work. That was the beginning of the work .

Q.

Now , those copyrights, 1 believer are dated in

May 1982, is it?

18

A.

Co rrec t, I th lnk up until Feb ruar y of 103 .

19

Q.

And between that timez May 182: February :03, to the

20

present, do you know any person on the planet who has the

21

anomaly detection software that is contained in these

22

copyrights?

23

A.

No .

24

Q.

Has it ever been duplicated?


123

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,.xe

A.

'

w e )

Well, I -- I don 't know about Corning , be cause 1

didnft continue do ing work for them at some point .

know, we had moved on to other things: so 1 reakly wouldn lt

know whether that's the case or not.

5
6

Q.

9
10
11

12

Al1 right . But kn terms of the anomaly detectkon

aspect of the software thats in these -- these copyrights?

7
8

We -- you

A.

Ive never seen anything in the literature describing

Q.

And at some time after 1982, did you improve on the

it .

technology that's n these copyrights?


A.

Yesy I believe in '86 or 187 .

1 can 't remember

exactly, but somewhere in that time frame .

13

Q.

Describe to the Court what you did .

14

A.

Well: these were originally written on a

15

Hewlett-packard computer, and I had translated them to work on

16

IBM computers .

17

first becoming available.

18

19
20

Q.

This was the beginning when the IBM PC was

And in what way did that improve or refine the anomaly

detection software that you had proprietary rights in?


A.

1 was able to add more anomakies.

I was able to make

21

it run faster . And HP computers -- the IBM was -- it was

22

pretty obvious that the IBM computer was to going to become

23

pretty popular.

24

Q.

And at some pointr did you form a company called


124

CECILIA MOSZ: NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 126 of 207

Barrett Labs?

A.

Y es .

Q.

When was that, slr?

A.

I think around '85 or :86.

6
7

1'm not certain of the

date .

Q.

And did you us() the anomaly detection software that

you had developed between '82 and '87 in Barrett Labs?

A.

Yes.

Q.

And in what way did you use it?

10

A.

Well, we had hooked up to more sophisticated

11

instruments. We did far more complicated spectral analysis

12

work and so forth .

13

Q.

How was Computermate dissolved?

14

A.

I think it was either sold -- 1 think it was sold .

15

Q.

And who was t sold to?

16

A.

1 don 't reca) L the person .

17

Q.

And how dtd you retain the rights in the company?

18

A.

I have a le tter reta inin g the rights to the origin al

19

20

work.

Q.

Now , after 1980 to 1987 period, in connection with

21

Barrett Labs, did you do any further refining of the anomaly

22

detection software that 's in Exhibit 21?

23

A.

From then to when?

24

Q.

Well, when was the next time you did any refining?
125

CECILIA VOSIfz NV CCR #246 (775) 827-0672

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N'o#r'

1
2

A.

I don 't remerdaer if it was in 3Net or not .

Surely

a fte r 3N et I d id .

Q.

Okay . When was 3Net?

A.

180- -- 1 thjnk it was '87 to '92, '93.

Q.

And what was 3hlet?

A.

3Net was a company that had built large-scale clinical

8
9
10

information systems in the hospital.

Q.

And did any part of your anomaly detection software

play any role with reqpard to your involvement with 3Net?


A.

Well, I'm sure that there was some small pieces inside

11

the 3Net software that. used anomaly detection, but that was not

12

their primary business.

13
14

15

Q.

And what Ls the dlstinction between anomaly detection

and pattern recognition?

A.

Anomaly detection is looking for anyth ing out of the

16

normal, and pattern recognition is specifically looking for

17

patterns kn things.

18

Q.

Are they two different technologies?

19

A.

Yes.

20

Q.

And does your prior testimony you just gave,

21

basically, in a simple way, in a layman 's way, describe the two

22

different technologies?

23

A.

Yes.

24

Q.

And Exhibit 21 containing the copyrights wasz in fact,


126

CECILIA M(?SZS NV CCR #246 (775) 827-0672

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used in connection with your company, Barrett Labs?

A.

Yes.

Q.

And in what way did you license that technology to

your clients?

MR. PEEK ;

Best evidence is the license itself.

Everything here lacks iather an assignment document, a license

7.

document or anything else.

themselves to address the assignment or the licensing.

9
10

11
12

The best evidence are the documents

THE COURT: Objection ls overruled. Go ahead.


BY MR . FLYNN :

Q.

In what w ay was the technology -- anomaly detection

software used, Mr. Montgomery?

13

A.

In which company?

14

Q.

In Barrett Labs .

15

A.

Well, they had hooked up ; I think I stated earlier,

16

far more sophisticated instruments and required far more

17

sophisticated anomaly detection or pattern recognition

18

so ftw are .

19

Q.

And at that pointz to your knowledge, did anyone in

20

the world possess the sophistication , the software, to do that

21

type cf work of anomaly detection?

22
23

24

A.

Since our work was in mediciner I did not know of

anyone.

Q.

Now , when was the next time after 3Net that you had
127

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I.p- e

1
2

'..

occasion to use your copyrights for anomaly detection?


A.

1 did some cortsulting work for Kaiser in '94 # I

believe . And I was building some instrumentation control

unit -- I don 't remember specifically what it was, but I was

doing work for them .

Q.

And so you d5d further work on anomaly detection?

A.

Yes .

Q.

Okay . Now, between '93 and 98, how were you -- what

was your occupation?

10

A.

I was self-employed as a consultant .

11

Q.

And was that with Pacific Consulting?

12

A.

Yes.

13

Q.

And what type of cortsulting were you doing?

14

A.

I was doing both medical -- and 1 started doing work

15

16
17

in Los Angeles in motjon pictures.

Q.

And did anomaly detection software -- was that

involved in any of your consulting work at that time?

18

A.

N ot anom aly de tection .

19

Q.

What was involved?

20

A.

Pattern recognition .

21

Q.

What type of pattern recognition?

22

A.

1 was working with a company that had an interest in

23

24

trying to database assets out of live -- video -- movies.

Q.

And what type of pattern recognition -- how would you


128

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Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 130 of 207


..->m

7* '

describe that type of pattern recognition?

A.

Well, that was looking for a known object in a film .

So if they were looking for a cup: they would try to tell the

computer, and they needed software to say in -- this cup , is it

in any of bhese frames, and it would go look for it .

Q.

Now, at som e pcd nt, you met Mr . Trepp?

A.

Yes.

0.

When did you first meet Mr . Trepp?

A.

It might have been jn #96 or 697.

10

11

I don 't recall .

The time 1 do recall is when I met him at the Eldorado in 198 .

Q.

Okay. And describe to the Court everything that you

12

can recall in connection wikh your meeting with M r . Trepp at

13

the Eldorado in 1998.

14

A.

I was just introduced to him by a gentleman named

15

Steve Sands. And l've known Steve, I don't know , maybe a year

16

or so forth . When I went there, he had heard some of the work

17

I was doing in Los Angeles and said that he m ight have somebody

18

that might be interested in 1t .

19
20
21

Q.

Okay . Describe the conversation about what you and

M r . Trepp discussed with regard to the work you were doing .'
A.

I simply told him the work that I 'd been doing in

22

compression , b0th video and data compression, and I described

23

that to him .

24

Q.

Okay. As best you can recall: understanding you can't


12 9

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.m
1

remember word for word, but as best you can recall, describe to

the Court what you were tellkng Mr . Trepp about data

compression .

I was simply telling h im that I had the ability to

shrink a mo'vie much smaller at the time than the common

compressors worked .

video

Q.

Okay . What Ls that, Mr. Montgomery?

A.

It 's a form (3f lossy data compression , where you take

9
10

11
12

13
14
15

information and add a certain amount of loss into it and shrink


it .

Q.

And how does that differ from data -- strike that --

from pattern recogniton?

A.

It's totally different . Pattern recognition is

actually looking for something in the video .


Q.

Now, when you say 'fit 's totally different'' -- I'm not

16

a computer programmer and 11m not experienced in the ways ef

17

computer programming .

18

the Court in a layman 's way how they are two completely

19

different animals?

20

A.

Is there some way you can describe to

Well, video compression is looking to shrink a file

21

and trying to keep the file intact, mostly .

22

recognition is looking through the file and trying to find

23

things .

24
'

A.

Q.

Pattern

Okay. Now, you obviously were in the courtroom during


130

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.

.--

v ;-

Mr . Trepp 's testimony about Gunga Din and --

A.

Right .

Q.

-- discussing 130th pattern recognition and data

compression before the deal was signed on September 28th

1 998 .

A.

Yes, I heard .

Q.

And you heard it --

A.

Y es .

Q.

-- is that correct?

A.

Yes .

10

Q.

Was it truthful?

11

A.

1 don't recall anything to do with Gunga Din .

12

Q.

Do you recal anything about pattern recognition?

13

A.

No .

14

Q.

Is it possible that you had that conversation?

15

A.

No .

16

Q.

What was jn your mind -- what was your intent as a


.

17

contracting party when you signed the contribution agreement

18

and formed eTreppid, then Intrepid Technologies, with Mr . Trepp

19

as to what you were putting into the company?

20

MR . PEEK :

Your Honor -- I'm sorry .

21

THE COURT : Go ahead .

22

MR. PEEK: My objection is to intent

1 apologize .

1 think the

23

Court allowed ''understoodr'' but intent , I thinkz definitely

24

would go to vary the terms and conditions of the contract , as


l31

CECILIA Uofffr NV CCX #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 133 of 207

opposed to his understanding .

THE COURT : WeLl, I think that there are some claims

here as to what the contract says and what it means and what

the parties intended . 2G d 1 know M r . Trepp talked about what

h is intent was, and I think it will aid me in understanding

exactly what we're dealing with .

objection. I think ik%5 not necessarily to contradict the

terms of the contract, but to explain them .

So, go ahead.

10
11

12

I#m going to overrule the

THE WITNESS :

Daha compression .

B Y M R . FLYNN :

Q.

And at this point in timez September 1998, how many

13

different technologies did you have sophisticated know ledge of

14

with regard to computer programming, other than data

15

compression?

16

A.

Well, I had spentz you know, the last 10 or 15 years

17

working in medicine, so 1 had a 1ot of experience in building

18

medical-type devices and medical programming through a 1ot of

19

variety of areas, b0th in the ckin ical laboratory and the

20

medical records and X-ray . And 3Net was building a large-scale

21

clinical information system to do that .

22

Q.

So you had a1l that soph kstication?

23

A.

Yes.

24

Q.

What other sophisticated knowledge did you have?


l32

CECILIA VOHL. NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 134 of 207

A.

Well, obviousty: 1 had a 1ot of experience in pattern

and anomaly recognttion because it was used n those

technologies.

Q.

So when you macle this deal with Mr . Trepp , again , what

was your understanding, understanding the differentiation

between these technologies, as to what you were putting in?

A.

Data compression .

Q.

A t any time: tn any discussions with Mr . Trepp prior

10

to September 28th, do you recall any discussion about putting

in any other technology other than data compression?

11

A.

No .

12

Q.

In fact, you signed the 1998 contribution agreement,

13

sir?

14

A.

Yes.

15

Q.

And you re aware of its provisions?

16

A.

Y es .

17

Q.

You 're aware of that provision, 1 .2.1, which says that

18

the o n ly th ing b e ing given is the techno logy -- th e softw are

19

compression engine development program contained on CD

20

Number 12

21

A.

Yes.

22

Q.

Did you, in factw prepare CD Number 12

23

A.

Yes.

24

Q.

When did you prepare it?


l33

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CECILIA MOVZ, NV CCA #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 135 of 207


*e -

..e

A.

I don 't know the exact date, but in that time frame .

Q.

Did you deliver it?

A.

Yes .

Q.

You wanted to form this company; isn t that correct,

A.

Yes .

Q.

You wanted to !7ut the data compression technology you

sir?

knew into that company; isn 't that rightr sir?

A.

Yes.

10

Q.

What was the then-best form that you could utilize to

11

put that data compression technology into the company?

12

A.

I put it on a CD.

Is that your question?

13

Q.

Yes.

14

A.

Yeah, I put .
tt on a CD .

15

Q.

And who did you give the CD to?

16

A.

Doug Frye.

17

Q.

Where did you sign the documentsr the September 28th,

'

18

1998 contribution aqreement, which has been marked as

19

Exhibit 3?

20

A.

I believe in my home in Lodi.

21

Q.

And did Frye give it to you?

22

A.

Y es .

23

Q.

Did you have any discussion with Mr . Frye about the

24

provisions: the language, in the contribution agreement?


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-<

1
2

3
4

A.

Yes.

*-#

1 mean, they wanted the CD Number 1, which

contained the software for data compression .

Q.

lf you hadn dt clelivered CD Number 1, would the company

have started?

A.

No .

Q.

How could the company have started if it didn 't have

CD Number 12

A.

Noz it did . That was the point .

Q.

So, you gave the CD Number 1 to Mr . Frye?

10

A.

Y es .

11

Q.

Do you know what he did with t?

12

A.

No .

13

Q.

And thereafter, after the deal was made, you gave

14
15
16

Mr . Frye CD Number 1. Shortly thereafter, did Mr . Trepp leave?


A.

Yes . He teft, I believe, in November or December

of 198 .

17

Q.

And who was running the company after he left?

18

A.

Doug Frye .

19

Q.

What did Mr. Frye do?

20

A.

Well, he told me that Warren wasn 't going to be back

21

until M ay or June and that he was the one that was in charge of

22

the company.

23
24

Q.

Now , 1et me refer you to the contribution agreement,

which has been marked as Exhibit 3, to paragraph 1.3s ''Excluded


135

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t.
w.

,....

1--- - Asaet.s and-Liab i-l-i-tlre.s .i Do you recall tha U prew i-sionv .-s i-l=Z?- --

.- - --

A.

Yes.

Q.

And does that provision accurately set forth the

agreement thaL you made w1th Mr. -- w ith Mr. Trepp?

A.

Yes .

Q.

And it was your understanding that you weren 't giving

any technology other than data compression and the data

compression on CD Number 1; is that correct?

A.

Yes .

10

Q.

Did you and Mr . Frye have any discussion about that?

11

A'

Well

12

Q.

So it was a given?

13

A.

Yes .

14

Q.

Now, what type of work did M r. Trepp do in running

15
16

I had to deliver the CD to him .

then Intrepid Technologies after Mr . Trepp left?


A.

To be honest with you, I don 't know because 1

17

continued to do my workr and 1 was waiting for Warren,

18

obviously, to get back.

19

Q.

What type of work were you doing?

20

A.

Data compression, working on the data compression

21

model.

22

Q.

23
24

Describe, if you can, in som e detail -- see if you can

flesh that out a little bit. Were you working on a computer?


A.

Yes .
13 6

CECILIA MOSSS NV CCR #246 (775) 827-0672

-..

'

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 138 of 207


r-.

'--

- -

-.

1- .-.-.--.p.p... .Wha L webe #rtyu doingF -..WeF& -Y(n1.-G&eG tY l+g-Q-i-l.


leD-VJ.
f--C-OVleW

- .

2
3

A.

I mean, 1 was generating code and creating different

varieties o f that particular technology.

Q.

For different applications?

A.

Ye s .

Q.

What types of different applications?

A.

Well, data compressbon inside of Windows, and video

and audio requires a specific interface so you can hook to the

hardware devices in Windows.

10

11

So, I was building those

interfaces for those different hardware devices.

Q.

And what was ycur typical work routine during that

12

time frame, i.e ., early October 1998 through the end of

13

December :98?

14

A.

I worked eighlo ten hours a day on the software .

15

Q.

During that time frame?

16

A.

Yes .

17

Q.

How many days a week?

18

A.

Probably five or six .

19

Q.

During that time frame?

20

A.

Yes .

21

Q.

And for how long did you continue developing different

22

applications with that data compression technology?

23

A.

Continuously .

24

Q.

Up until what time?


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x

Q.

Until you were fired?

Okay .

Now, between the time you were working exclusively in

building those models that you described, forgetting, for the

moment, any anomaly detection in connection with government

classified issues, did you do any other type of data

compression work al: e7'reppid Technologies?

8
9

10

A.

Welly we were cleveloping an audio and a video and a

data Kodak in multiple forms .

Q.

And how many tines of code were typically being

11

written per day in connection with these applications you were

12

preparing?

13

A.

By me personaly or collectively?

14

Q.

Well, let's f'trst talk you personally .

15

A.

That s very hard to determine . Thousands .

16

Q.

And collectivelyy how many lines of code were being

17

written?

18

A.

Five to ten thousand .

19

Q.

Per day?

20

A.

Yes .

21

Q.

A11 in data compression?

22

A.

Y es .

23

Q.

At this -- and for -- and that continued a1l the way

24

up until the time you were fired?


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.
Iw )
1

A.

That 's correct.

Q.

Now , where isr today: a11 of those -- before we get to

the source codes -- all of the lines of. code tha: were created

over all of those years for the data compression?

A.

In eTreppid .

Q.

And you lve heazd this testimony saying this has been

deketed and that has been deketed . lf you walked over to

eTreppid tomorrow Inorning, could you find the source codes,

first, for a11 of those lines of code?

10

A.

Assuming it hasn t been destroyed, yes.

11

Q.

Okay . Now, let's talk a little bit about the -- what

12

you cally what, ''copy and destroyr'' when you re doing a -- when

13

you 're creating som ething on a server.

14

A.

1 think what you 're asking is, when people are writing

'
1$

computer programs, the computers are contihfsly building and

16

destroying filesz 1 mean, hundreds of files, files that are

17

used in the process of making the source code.

18

Q.

So, at every workstation, every programmer is

19

continuously creating and destroying every timez virtuallyz he

20

w rites code?

21

A.

That ls correct.

22

Q.

And that has always been the way at eTreppid

23
24

Technologies; is that correct?


A.

The nature of building complex programs, that is an


139

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ukx, .
1

!'- )

inherent -- you know , a task in it .

Q.

Okay-

A.

Things are buiLt and taken apart .

Q.

Now, have you ever destroyed tn any way or taken any

data compression technology from eTreppid?

A.

No.

Q.

On how many different computers a: eTrepp id does data

compression technology appear?

A.

Over a hundred.

10

Q.

On how many different hard drives?

11

A.

Hundreds.

12

Q.

And we heard a figure of about 150 million bytes of

13

Three or four hundred , probably.

information, was it?

14

A.

Files.

15

Q.

Files?

16

A.

Yes .

17

Q.

And M r . Venable testified that there's still

18

80 percent or that that he 's found there .

19

testimony?

20

A.

Yes .

21

Q.

And with regard to the other 20 percent, have you done

22

Have you heard that

or taken or deleted any of that 20 percent?

23

A.

No.

24

Q.

And if Mr . Venable cannot find this alleged purported


140

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'

I
h
Case 3:06-cv-00056-PMP-VPC
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Page 142 of 207

('

Y--.

.-.

20 percent, do you have any explanation as to where it might

be?

A.

bu ilding, um , so they dre obviously not looking in the right

spots, I presume.

6
7

Well, ik was on the computers when I left the

Q.

And as the chief technology officer, unless someone

else has destroyed it, if you went in there, could you find it?

A.

If it hadu 't been destroyed: yes .

Q.

Now: is there any reason it would have been destroyed

10

by other eTreppid Technologies employees?

11

A.

12

detection .

13

Q.

Nowr when you say ''downstairs,'' what do you mean?

14

A.

ln the area of the warehouse .

15

Q.

And describe ko the Court what that downstairs area --

16

The stuff 1 was working on downstairs had intrusion

or how it was configured .

17

A.

There was abotlt l00 computers that were in cabinets

18

an d abo ut 20 compute rs that w ere no t ln cab inet s .

19

computers were a11 hooked together in what rs called one

20

cluster, and information was, obviously, on those computers .

21

A nd tho se

MR . FLYNN : Your Honor, I have a chronology that will

22

simply aid the Court. 1 would just simply ask that it be

23

m arked at this point in time .

24

it.

I don 't know if 1:11 ever offer

I think it would help the Court to follow it.


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Page 143 of 207
1
1. xw.. )

.p...

THE COURT:

Is this going to be for demonstrative

M R . FLYNN :

Y es, Your Honor .

THE COURT :

1 don 't think it needs to be marked,

.
pu rp oses?

unless somebody wants i.t to be marked .

something you can write on the board, if you wanted to take the

time to write it on the board --

MR . FLYNN :

MR . PEEK :

1 mean, if it 's

lt would be time-consuming .
It 's only for demonstrative purposes, Your

10

Honor, and not a matter of evidence . And he could use anything

11

he wants . And like you said, he could write it on the board .

12
13

THE COURT : That ls why 1 fm saying: let's use the


chrono logy .

14

15

MR . PEEK : But let fs not assume that every one of

these items are, in fact, evidentiary or proven .

16

THE COURT : Any more than if he wrote them on the

17

board or anybody wrote them on the board .

18

BY M R . FLYNN :

19
20

Q.

Nowr at some point in time, sir, during 1998, did you

have occasion to work 18 hours and seven days a week?

21

A.

In ,982

22

Q.

Yes .

23

A.

I lost my train of thought.

24

MR. PEEK: Objection. Asked and answered. He said he


142

CECILIA VOHL, NV CCR #246 (775) 827-0672

t
I
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.... '
kx .
r

worked about five or sx days a week.

2
3

THE WITNESS: That was at the very beginning .


not moved up here.

4
5

6
7

1 had

THE COURT :

That was what he said .

BY MR . FLYNN :

Q.

How were you being treated by eTreppid Technologies i.n

term s of your status?

A.

I was an independent contractar.

Q.

And how much were you being paid?

10

A.

W ell, 1 started outr I believtb at 12,000 a monthw I

11

thinky in '98 and '99 . In 2000, I believe I went to 192,000 .

12

I:m not certain of the date, but roughly around then . No,

13

actually, T went to one-sixty in 2000, and then I went to --

14

in '99 or 2000, l went 1lo one-ninety or 200,000, I believe .

15

Q.

Now, at some tLme in the summer of 1999, did you begin

16

to question the expenses that eTreppid was incurring , when you

17

were 50 pereent owner, ror airfare?

18

A.

Y es .

19

Q.

And what happened?

20

A.

T believe we needed money already . Um , and I was

21

somewhat shocked . And I think I actually inquired in to Doug ,

22

and he said we had a pretty big airfare bill.

23

Q.

Did you ask him f the 1.3 million had been paid in?

24

A.

Yeah . He said wedre out of money .


143

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(

1
2
3
4

Q.

And did he tell you whether the 1.3 million had been

pad in?
A.

1 don ': believe he said it had been paid in, but he

said we were out of money .

Q.

And did he tell you how much the airfare bill was

that -- that he described to you was the reason you were out of

money?

A.

I believe it w'as around 500,000.

Q.

Now, during that period of time, did you have a

10

conversation wkth Mr . Trepp, around the summer of 1999, about

11

your stock interest in eTreppid?

12

A.

Yes .

13

Q.

What was that conversation?

14

A.

It was regardng the initial dilution 1 had to give

15

the s to ck up for .

16

Q.

How did that occurz M r. Montgomery?

17

A.

I don lt remember the exact date: but I was told --

18

Steve Sands approached me and told me that documents were

19

produced and f -- Lhat I was immediately to give up 10 percent

20

of my stock.

21
22

Q.

This is the same Steve Sands who was the finder who

connected you to Mr . Montqomery (sic); is that correct?

23

A.

lTrepp,'' yes.

24

Q.

Mr. Trepp .
144

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h
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h-e .f

1'
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A.

Yes .

Q.

And did you have a conversation with either Mr . Sands

or M r . Yrepp about why your 10 percent should be given to

Mr. Sands?

A.

1 -- I don 't know the exact date, so my date may be

off.

1 thlnk Mr . Trepp was still out of the country wben I was

approached by M r. Sands initially, and 1 cou ldn ft contact him

because he was on a ship .

Q.

10

owned?

11

A.

Yes .

12

Q.

And then did you subsequently meet with Mr . Trepp on

13

this issue?

14

A.

15
16
17

day .

And -- but Mr . Sands wanted 10 percent of what you

We -- I know : -- I had to sign the documents that

I was given no choice.

Q.

When you say you were given no choice, who gave you no

choice?

18

A.

M r . Sand s .

19

Q.

What did he say to you?

20

A.

''You will sign the documents today as they were

21

prepared.''

22

Q.

Or what?

23

A.

''Or you won't have any deal with Warren Trepp .''

24

Q.

And how much were you then being paid, 12,000 a month?
l45

CECILIA VOHL, NV CCR #246 (775) 827-0672

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A.

Roughly, yes .

Q.

And is it fair to say you were basically living hand

to mouth at that time with regard to that salary, supporting

your family?

A.

6
7

MR. PEEK: Objectionr Your Honor. ''Hand to mouthe'?


12 ,000 a month ?

8
9

Yes .

144,000?

THE COURT: 1 mean, youdre objecting as to whether or


not that 's hand to mouth?

10

MR . PEEK : But that's also leading .

11

MR . FLYNN :

12

MR . PEEK ; Alscu 1 was a little b1t slow on the gun

T'1l withdraw it.

13

because I wasn ft sure how Steve Sands did it, but I 'm going to

14

move to strike al1 the statements of Steve Sands as hearsay .

15

I'm not sure he's identified -- 1 mean, other than the

16

finders -- so I thought, well, maybe thatfs the, mayber the

17

leap that he's somehow -- the testimony will be admissible .

18

But the whole testimony was that he had no choice,

19

sign or no deal with W arren Trepp . 1 move to strike a11 of

20

that as hearsay.

21
22

MR. FLYNN : I am just offering this as to the state of


mind, Your Honor.

23

24

THE COURT; A1l right. The motion is denied .

////

//Z/
l46

CECILIA v()S%, NV CcR #246 (775) 827-0672

l
Case 3:06-cv-00056-PMP-VPC
Document 644-21 Filed 05/28/08 Page 148 of 207
'
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BY M R . FLYNN :

Q.

Mr. Montgomery, did you sign the documents?

A.

Yes .

Q.

Now , are you marriecl, sir?

A.

Yes .

Q.

How long have you been marriecl?

A.

Thirty-three years .

Q.

And what documents did you sign?

A.

1 think it was a stock -- I donlt want to say a stock

10

transfer . It was sone document like that.

1 had this

11

document, but I had to transfer 10 percent of it to him .

12

Q.

And then what happened with regard to this 10 percent?

13

A.

At some point, 1 think Mr. Trepp came backz and I

14

explained the prob lem or situation I was in .

15

Q.

And what did he say?

16

A.

He would deal with it .

17

Q.

Then what happened?

18

A.

I went, at some point, back to the office of the

19

attorney that represented Mr . Sands with M r. Sands there. And

20

they had come up with a new deal where, a11 of a sudden: I only

21

had to give him , 1 believez 5 percent of the stock.

22

Q.

And what happened to the other 5 percent?

23

A.

I believe -- I don 't know if all 5 percent went to

24

Mr . Frye .
147

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Page 149 of 207
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0.

Did you hand another assignment to Mr. Frye?

A.

Yes .

Q.

And do you know -- you don 't recall the specific

percentagez but it was --

A.

remember .

1 think iI: might have been 4 percent.

1 don 't really

MR. PEEK: Your Honor, I'm going to object to this

line of questioning as being irrelevant related to the

dilution .

I don lt know where welre gojwng here, Your Honor .

10

THE COURT : Well, 1'm not sure .

11

MR . PEEK :

12

tonight.

13

I want to try to finishz as you did,

We lre already past 40 minutea .


THE COURT : 1 have a concern ikbout where it ls going

14

too. But 1 would like to allow it to continue just for a

15

little bit, and we rll see where it 's going .

16

MR . FLYNN :

1:.
'L1 keep moving (7n, Your Honor . And it

17

goes to the parties conforming to the terms of the contract .

18

BY M R . FLYN N :

19

Q.

Now z at some pointy did youz in early 2000, request to

20

see the books and records of eTreppid Technologies after you

21

had just lost this stock to Mr. Sands and Mr. Frye?

22
23

24

MR. PEEK : Objectionp Your Honor. Characterized as


loss of stock.

THE COUR%': Yesz if you could just ask the question


148

CECILIA VOSL, NV CCR #246 (775) 827-0672

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'
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4.

without characterization .

BY M R . FLYNN :

Q.

Sands?

A.

Yes .

Q.

And were you given access to the records?

After, the stock ended up in the hands of Frye and

NO .

'

*
8
9

Q.

Did you ask Mr . Trepp at that point how ntuch money had

been put into the company?

10

A.

I believe so.

11

Q.

What did h e say?

12

A.

Several m llion .

13

Q.

Did you ask to see it to verify it?

14

A.

1 believe I wanted some form of proof.

15

Q.

And were you glven any form of proof?

16

A.

No .

17

Q.

Did you tken have a discussion about the airfare

18

expenses of eTreppid Technologies when you were now: roughlyr a

19

40 percent okm er during the year 2000?

20
1,

1...

1'

21

22
23

24

A.

I had never been around anybcdy where the airfares

were like this. This is unbelievable .

Q.

And what were you told the airfares were in the year

20002

MR . PEEK : Do we have by Whom , Your Honor?


149

CECILIA MOSTZS NV CCR #246 (775) 82 7-0672


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1
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B Y M R . FLYNN :

Q.

By whom?

A.

By whom?

I mean, it was obvious, because I had seen a

few of the billsy that, you know, they were high .

talking fj.ftyy sixty thousand a trip .

You fre

Q.

And where were the trips, to your knowledge?

uew York, LA .

Q.

On what type ()f airplane?

A.

Gulfstream , usually I11 or IV .

10

Q.

Privately chartered?

11

A.

Y es .

12

Q.

What was the purpose or the trips?

13

A.

I can 't remember a11 of them . Did we ever go on

14

business?

15

plane was ever used for.

16

Q.

Yes. But 1 can 't vouch for every trip that that

Did you have an understanding in the year 2000 as to

17

how much, roughly, the expenses were for airfare at eTreppid

18

Technologies?

19

MR. PEEK: Objection: Your Honor. Could we have a

20

foundation as opposed to an understanding .

21

BY MR . FLYNN :

'

''
1
kk
.

22
23

24

Q.

Where did you get the understanding from?


THE COURT: Well, first of all, did he have an

understanding.
150

CECILIA VOSL, NV CCR #246 (775) 827-0672


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Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 152 of 207


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BY MR . FLYNN :

Q.

Did you have an understanding, yes or no?

A.

Yes .

4
5

THE COURT : Where did you get the understanding?


BY M R . FLYN N :

Q.

Where did you get it?

A.

Zr' TrOPP '

8
9

10
11

THE COURT : A 11 right. Go ahead .


BY MR . FLYNN ;

Q.

And what was your understanding as to approximately

the expenses were in the year?

12

MR . PEEK :

Your Honorr do we have a conversation

13

where, Mr . Trepp, time, place, who was present?

14

foundation that Mr . Flynn expected of us.

Same

(.1

15
16

THE COURT :

he 's asking is what did M r. Trepp tell him about that .

17

>

''

i understand . But I think -- what I think

So if you could just ask him that question, then we're

18

not talking about hs understanding, but what he was told .

19

BY MR . FLYNN :

20

Q.

What did he tell you?

21

A.

That he had signed a contract for so many hours of

22

flight and that they had guaranteed those hours .

23

Q.

Who did he tell you he signed the contract with?

24

A.

Trans-Exec in Van Nuysr California .


151

CECILJA VOSZS NV CCR #246 (775) 827-0672


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!--.,

1
2

company?

1 believe he said it was a million dollars .

Q.

Now , let 's move forward into November of 2001.

to November of 2001, was a11 your work still data compression?


A.

Yes .

Q.

And in November of 2001, did you have a conversation

with Mr . Trepp abotlt sharing the profits of eTreppid

Technologies?
A.

Welly I was cortcerned how I was going to get profit

out o f the company .

12

Q.

And what did you say to him?

13

A.

''How am I gojng to get profit out of the company?'

14

Q.

What did he say?

15

A.

''We haven 't made any money yet .''

16

Q.

M d did you bring up the airfare expenses?

17

A.

Yes .

18

THE COIJRT : Excuse me. I just wanted to ask my court

19

reporter how she was holding up . I didnt mean to -- 1et me

20

just interrupt for a minute . How much longer are you going to

21

be with this witness?

22

MR . FLYIIN : What time did Your Honor want to try to --

23

MR . PEEK :

24

MR . FLYNN : 1 m thinking 20 minutes, Your Honor .

Don 't take all my timez Mr . Flynn .

152

CECILIA MOS.D, NV CCR #246 (775) 827-0672


1

Prior

11

And did he tell you how much it was costing the

A.

10

tr.
.,
r

.1?

Q.

Case 3:06-cv-00056-PMP-VPC
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Page 154 of 207
''

THE COURT:

- ?

Well, perhaps this would be a good point

in time to take a break. We've been going since a little after

5 :00.

cross-examination?

Would you antcipate an equal amount of Lime on

5
6

MR . PEEK : I would anticipate an equal amount of time


on cross-examlnatlon . So farr he s gone 40 minutes: almost 50.

.1

THE COURT : I said a1l of it was irrelevant z so what

are you going to cross-examine him about? I'm just kidding.

.,

I understand, Your Honor.

That rs a nice

10

yank.

11

has considered it relevant: so I have to at least address the

12

points that were made by Mr. Flynn . If the Court had sustained

13

it, I wouldnlt have gone into it, Your Honor . But I appreciate

14

the yank.

I appreciate the yank. But by the same tokenz the Court

15

THE COURT : A11 right.

16

m inutes, so quarter after 7:00.

Let's be in recess for 15

17

(A brief recess was taken at the bour of 7:00 p .m .)

18

THE COURT:

19

'i

MR . PEEK :

20
21

Be seated .

BY M R . FLYNN :

Q.

November 2001, prior to November 2001, who paid for

your m edical insurance?

22

A.

I did .

23

Q.

Did you qet any other employee benefits?

24

A.

No.
153

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,,rt-)

Q.

In November 2001 -- or, strike that .


Prior to 2001, was anything other than data

compression work being done at eTreppid Technologies?

A.

The video game -- the video game was.

Q.

And are you -- you dre not making any claim of any

ownership of any aspect of khe video game; is that correct?

A.

No.

Q.

In November 2001, did you have a meeting with

10
11

'

tx-.
-

Mr . Trepp regarding your stock?

A.

Well, 1 was being -- they needed to raise money, and 1

was going to be diluted .

12

Q.

ls that what Mr. Trepp told you?

13

A.

Yes.

14

Q.

Did you have a conversation at that time about

15

Doug Frye ls legal expenses being charged off against the

16

company?

17

A.

Yes. They were enormous, I thought .

18

Q.

And what range per year were they?

19

A.

200,000.

20

Q.

And did you ask him if Mr . Frye was then doing

21

$2000,000 a year of work for eTreppid Technologies?

22

A.

He said he would look into it .

23

Q.

Did you ask to see the books and records of the

24

company to see what else was being expensed against the


154

CECILIA VOSLZ NV CCR #246 4775) 827-0672

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company?

A.

Ye s .

Q.

Were you given access?

A.

No .

Q.

And what happened in connection with -- with the stock

transaction in November 20012

7
8

A.

250:000 so I would not be diluted .

9
10

'

I don 't remeH ler the exact datey but I had to borrow

Q.

And at that times did you also sell 2 percent of your

stock to someone named Wayne Primm?

11

A.

Yes .

12

Q.

And how did that transaction take place?

13

A.

Warren made an arrangement with Wayne, and Wayne and

14

Doug -- I don 't know who -- they carred out the logistics of

15

it.

16

Q.

Were you paid $1.5 million?

17

A.

I believe so, yes.

18

Q.

And what did you do with the $1.5 million?

19

A.

T wrote Mr. Trepp back two checksz one for

20

21

22

g8o-som e-thousand and one for 100,000.

Q.

And, in fact, wa3 the cheek in the amount of

$975,000.29:

23

A.

Yes.

24

Q.

And is that a copy of the check?


155

CECILIA BSSZ, NV CCR #246 (775) 827-0672

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't:T*'')

A.

-,.,,,.

Yes.

MR . FLYNN :

MR. PEEK: No cbjection, Your Honor.

THE COURT :

(Defendant's Exhibit 22 was marked and adm itted into

l1d offer this: Your Honor .

lt 's admitted .

evidence.)

MR . PEEK ;

Is this 22?

THE CLERK : Yes, Exhibit 22 .

THE COURT:

J'nt still not sure how this is al1 tied

10

into the issue we lre trying to decide here today.

11

tied into some potential counterclaimsr I suppose, but T don lt

12

see - -

13

It might be

MR . FLYNN : It has to do with the breach of the

14

contract and the ultimate fight that takes place . And

15

notwithstanding Mr . Trepp ls testimony in the fall of 2005, this

16

was the foundation for the -- an accumulation .

17

MR . PEEK :

I haven 't heard what the breach of contract

18

was yet, though, Your Honor. He received $975,000: he paid

19

back $975,000.

20

%HE COURT : T understand .

21

MR . PEEK : Or, was it Doug Frye ls legal fees?

22

THE COURT : %ry not t spend a whole 1ot of time on

23
24

this.
MR . FLYNN :

T won 't

Your Honor .
156

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BY M R . FLYN N :

Q.

And then did you have to pay taxes?

A.

Y es .

Q.

How much did you pay in taxes?

A.

I b e liev e 282 ,000 .

Q.

How much did you net?

A.

1 believe a hundred grand .

Q.

Nowr in February 2002, where did you go?

A.

To a location in Florida .

10

Q.

And was that a government location?

11

A.

Yes.

12

Q.

And who went w Lth you?

13

A.

I think, the first dayz I went by myself.

14

Q.

And for what purpose did you go?

15

A.

We went to demonstrate video compression .

16

MR . PEEK : Cou d we have the ''wey'' Your Honor?

17

THE WITNESS :

18

compression .

19

BY MR . FLYNN ;

1'm sorry .

I went to demonstrate video

20

Q.

At some point, did someone else show up from eTreppid?

21

A.

Yes .

22

Q.

Who?

23

A.

Patty Gray .

24

Q.

And hoW long were you there?


l57

CECILIA UOSZ, NV CCR *246 (775) 827-0672

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A.

I believe five daysr four or five days .

Q.

What type of video compression did you demonstrate?

A.

1 took data off of an aircraft, and 1 streamed it at a

very 1ow kilobit rate .

Q.

A re we getting into classified information?

A.

Y es .

Q.

A fter you dicl this, did you go back and bave a

discussion w ith Mr . Trepp?

A.

Y es .

10

Q.

And what was the nature of that discussion in terms of

11

whether or not eTreppid was going to get involved in

12

object-tracking?

13

A.

When 1 -- when 1 was out there, I did one

14

demonstration of object-trackingw and I came back and told him

15

the results of the object-tracking and the results of the video

16

compression .

17
18

Q.

5o there were Lwo different technologies being

demonstrated out there?

19

A.

Yes .

20

Q.

And what did Mr . Trepp say?

21

A.

He was very interested in the data compression .

22

Q.

The video compression/data compression?

23

A.

Yes.

24

Q.

Was he interested 5.n the object-tracking?


158

CECILIA VOHL, NV CCR #246 (775) 027-0672

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'

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A.

Not really.

Q.

What did he say?

A.

He was very rterest.ed in the data compression .

Q.

And thereafter, during the year 2002, what were you

working on , as the chii?f technology officer?

A.

Video compresson.

Q.

And during the year 2002, who was paying your m edical

insurance?

A.

I w as .

10

Q.

And what type of documents were you getting from

11

eTreppid with regard to your status?

12

A.

A 1099.

13

Q.

And were you getting a K-1?

14

A.

Yes.

15

Q.

A 1l right-

16

Now: in November 2002, did something

happen with your stock?

17

A.

18

question .

Well, I believe I was diluted again , if that 's your

19

Q.

20

M r . Trepp?

21

A.

22

........

And dtd you have to, again, pay back money to

l don 't believe at that time -- I'm -- Ifm not

certain .

23

Q.

At som e point, did you pay back money for --

24

A.

Yes, yes .
159

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1
2

Q.

and M r. Milliken on the premises of eTreppid Technologies?

3
4

And in 2002, did you have occasion to see Mr. Trepp

A.

Yes . They came to our building.

1 don l: remember if

it was December, but they had come to our building.

Q.

And did you have a conversation with M r. Trepp about

A.

Yes .

Q.

And what was that conversation?

A.

I was surprised that that was going to happen .

10

Q.

And what did you say to him about Mr . M illiken?

11

A.

I don 't know how we would ever get clearance in the

12

it?

government w ith him as an investor .

13

Q.

Did he tell you what Mr . M illiken was going to invest?

14

A.

I thought he said 10 or 12 million .

15

Q.

For how much of the company?

16

A.

Five percent.

17

Q.

NoWz ln December oc 2002, did you complete certain

18

tests?

19

A.

2 002 or 3?

20

Q.

December 2002.

21

A.

Yes.

22

Q.

What tests did you complete? Without describing the

23
24

contents, just what, generically, was the nature of the test?


A.

We, once again, did some tests on aircraft w ith the


l60

CECILIA VOSLS NV CCR #246 /775) 827-0672

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video comp ression .


Q.

And did any of those -- aspects of those tests involve

anomaly detection?

A.

Yesy I believe it was pattern recognition .

Q.

And without getting into the contents of or what you

were actually doingy can you differentate for the Court?

MR . PEEK : Your Honor, could 1 ask if the witness is

just reading from his tmeline or actually is testlfying from

memory?

10

THE WITNESS : Testifying from memory.

11

MR . PEEK : Okay . Could we have the Limeline removed

12

from the witness stand?

13

THE COURT : 1 don 't know that that 's necessary .

14

MR . LOGAR : I clon 't think he has a right to do that.

15

THE COURT :

16

MR . PEEK :

17

MR . LOGAR : If the witness is using a document to

I don 't either .


Your Honor, I think I1m --

18

refresh his recollection, and Counsel has a right to see it,

19

but he has no right to --

20

MR . PEEK : But who prepared this, Your Honor?

Did it come contemporaneous from notes?

Did he

21

prepare it?

Where did

22

it come from? I tink I do have a right to know, and 1 don't

23

think the witness should be using it to testify from .

24

going to come into evidence, Your Honor .

It's not

It 's not his notes,

161

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it's not contemporaneous, and I don 'h think he should be ustng

t, respec tfu lly , Your H onor .

THE COURT :

MR. PEEK :

THE COURT :

Jt looks kind of like a script to me .


It does look like a script .
4 hhink perhaps it's a good idea not to

refer to it, at least rght now .

you can tt remember or want to refresh your recollectionz we rll

see about it.

MR . PEEK : We dll put it aside, then, Your Honor?

10
11

If you have som ething that

MR . FLYNN :

Turn it over, Mr . Montgomery.

BY M R . FLYNN :

12

0.

A t some point, d1d y&u complete these tests?

13

A.

Yes .

14

Q.

Okay . And how would you differentiate the technology

15

that was being used on the testing with other types of

16

technology that you owned or eTreppid was -- or eTrepp id owned?

17

A.

This is what time frame?

I believe December of 2002?

18

Q.

Correct.

19

A.

Is that the time frame?

20

Q.

Right .

21

A.

I believe Zehang, which had teskified earlier, had

22

just been hired, and he was beginning to do some work in

23

object-tracking. 1, on the other hand, was continuing to do --

24

had my anomaly and pattern detection software that I had made


162

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earlier . I had used that on occasion to test with also, and

video and data compression continued .

Q.

And was e'rreppid paid for these tests?

A.

Yes, yes.

Q.

How much?

A.

I believe 280,000.

Q.

And after these teshs were completed -- strike that.

A t the end of 2002, when these teats were complete -- and as 1

understand your testimony, based in part on your anom aly

10

detection and pattern recognition software; is that correct:

11

sir?

12

A.

Yes .

13

Q.

Were you still an independent contractor?

14

A.

Yes.

15

Q.

Was that technology complete?

16

A.

Yes .

17

Q.

Did you own .


it?

18

A.

Y es .

19

Q.

And were you still an independent contraetor?

20

A.

In 20022

21

Q.

Yes.

22

A.

Yes .

23

Q.

In January 2003, did -- did you have a conversation

24

with M r. Trepp about the change of your status?


163

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A.

Yes . They told me I was qoing Lo become an employee .

Q.

He told your you weze now going to be an emp loyee?

A.

That's correct .

Q.

Nowy with regard to your routine work in the company,

after you were supposecily designated ''employee,t' did anything

change with regard to how you supervised yourself, conducted

yourself, and did your work?

A.

No .

Q.

Was there any change of any nature or description

10

between when you were classified as an independent contractor

11

and the way you worked and when you were now classified as an

12

employee?

13

A.

No .

14

Q.

And the technology, the anomaly detection and pattern

15

recognition software, as of December :92, was complete?

16

A.

Yes .

17

Q.

And did that result, in early :03, of a government

18

contrac t?

19

A.

I think it was sometime around March or April.

20

Q.

And now, was that for an agency within the government

21

different than the Air Force?

22

A.

Yes.

23

Q.

And did you sign an agreement in connection with that

24

project -164

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A.

Yes .

Q.

-- with that department o f the government?

A.

Yes .

Q.

And just generically, under that agreement --

MR . PEEK :

Your Honor, could we have the agreement, f

this is separate and apart from eTreppid, and maybe -- may 1

have the witness a little bit on voir dire?

THE COURT :

MR . PEEK :

10

Hold on a second .

I'm trying to understand, is this a

separate contract with eTreppid?

11

THE COURT: Hold on. Let me just ask Counsel, is this

12

a separate contract between Mr . Montgomery and this other

13

government agency?

14
15

MR . FLYNN : This is the oath of secrecyz Your Honor .


We 're not into the --

16

THE COURT : A11 right .

17

MR . FLYNN : But --

18

MR . PEEK :

19

THE COURT ; He sald an oath of secrecy .

20

MR . PEEK : Your Honor, hiding behind the so-called

21

national security --

22
23

24

Well, I didn't hear the answer .

THE COURT : Welly he hasn t -- a11 he said is, did you


sign --

MR. PEEK : Wellr this is the oath of secrecy . That 's


l65

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the agreement --

2
3

THE COURT : Did he sign iL?

That's fine.

MR . PEEK :

1 apologize, Your Honor.

talking about a separate contract for work.

BY MR . FLYNN :

I think he

can answer that .

Q.

1 thought he was

Did you s tgn a document, you personally, with the

government with regarcl to your seeurity clearance in connection

with what you could disclose and not disclose ever to anybody?

10

A.

Yes .

11

Q.

And did an indJLvidual from this department give you

12

(
xax

that contract?

13

A.

Yes .

14

Q.

Did you execute lt?

15

A.

Yes.

16

Q.

Did you give it back to him?

17

A.

Yes .

18

Q.

Did you read it?

19

A.

Y es .

20

Q.

And did he give you a copy of it?

21

A.

No .

22

Q.

Under the terms of that contract, what is your

23

understanding today as to whether you can disclose anything

24

about the identity of anybody or the work you did in connection


166

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with the March 2003 contract for this department?


A.

cannot divulge the nature of the work or who the clients are .

Q.

or classified project at that time frame than what you were

doing?

MR. PEEK: Your Honor, 1 would object to that


because --

THE COURT :

Yeahr if we're not going to get to know

10

what it is, the testimony about something higher than that

11

can 't be cross-examined about. So since that cross-examination

12

is foreclosedr Idm not qoing to allow that question .

13
14

MR . FLYNN : Fine. Thank you : Your Honor.


BY M R . FLYNN :

15

Q.

Did you use source codes to do this project?

16

A.

Yes .

17

Q.

Where did you get them?

18

A.

There were multiple facets to the project. The video

19

and the face recognition was eTreppidAs, and the anomaly and

20

pattern detection was mine .

21

And can you imagine any higher governmental security

'

Well, we -- we signed -- the agreement states that 1

Q.

And in connection with this particular project, did

22

you have dscussions -- just yes or no -- with governmental

23

agents with regard to the anomaly detection aspect of the

24

software?
167

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,

A.

At that time, no .

Q.

At some point, did you have these discussions?

A.

Yes .

Q.

And when?

A.

September of '03 .

Q.

And did you complete the project to the satisfaction

of the government?

A.

Y es .

Q.

And the source codes that you used ln terms of

10

governmental classtfication, what are they called,

11

Mr . Montgomery, the anomaly detection source codes?

12
13

A.

Well, it was catlled the anomaly detection or pattern

recognition source codes .

14

Q.

What the does the term ''SAP'' mean?

15

A.

Special access program .

16

Q.

Does anyone else have an eTreppid -- have any dealing

17

wikh any governmental agency about special access programs?

18

A.

Ever?

19

Q.

During this time frame .

20

A.

Not that I know of.

21

Q.

Were the source codes classified?

22

A.

I believe, yes .

23

Q.

And were they called SAP?

24

A.

No. Well, it was just called source codes under that


168

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umbrella.

Q.

Under the umbrella of SA P?

A.

Yes .

Q.

How much was being paid by the government -- this

governmental agency for the work you were doing during this

time frame?

A.

Roughly, 350,000 a month .

Q.

And for how long did you do it?

A.

I think about a year.

10

Q.

Up until what time?

11

A.

September, October of 2004.

12

Q.

Now, in SepteM ner -- strike that . ln February of 103,

13

did you have a discuasion with Mr. Trepp about the ownership of

14

anomaly detection?

15

A.

Yes .

16

Q.

What was that discussion?

17

A.

I wanted to know how l was going to be compensated for

Q.

And this was during the period where this governmental

18

19
20

it .

contract was developing?

21

A.

Yes .

22

Q.

And what did he say?

23

A.

He would work it out .

24

Q.

Did you -- did you tell him who owned the technology
169

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that was being usecl?

A.

He knew w ho d id .

Q.

M d What did 116, Say?

MR . PEEK : Ob'jection, Your Honor . Nonresponsive .

THE COURT :

THE W ITNESS:

THE COURT : What did you tell him ?

Did you tell him?


: 'm sorry . Yes .

BY M R . FLYNN ;

Q.

What did you say to him?

10

A.

I owned it .

11

Q.

And what did he say?

12

A.

I think, initially, nothing. He just kept saying he

13

14
15

would work it out.

Q.

And then at some point, did the -- did he acknowledge

your ownership?

16

A.

Yes .

17

Q.

When?

18

A.

M iddle -- middle of 2004 .

19

Q.

Now, in July 2003, did this particular department of

20

the government state that they wanted security clearances for

21

five people?

22

A.

I think -- yes . Wellp the way that workedz actually,

23

was after December of 2002, the Air Force applied for the

24

government because we needed access to those programs. And


l70

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when we started dojng the work in 2003, they accelerated it,

the other group .

Q.

Okay . Ancl what is an interim clearance?

A.

Well, you apply for a clearance, and within 90 days,

they usually give you a temporary clearance .

Q.

And how many plogranr ers got a temporary clearance?

A.

One .

Q.

And who was that?

A.

Barjinder.

10

Q.

And when did you get your clearance?

11

A.

Interim or final?

12

Q.

Interim .

13

A.

March or April of 2004.

14

Q.

2003?

15

A.

'3.

16

Q.

And when did you get your final?

17

A.

I believe it was sometime in the summer of 2004 .

18

Q.

Okay.

19

Excuse me .

In August of 2003, were you given certain tapes

by the government?

20

A.

Yes, yes .

21

Q.

And did those tapes and what was on them precip itate a

22

23
24

1ot of discussion with M r. Trepp?

MR. PEEK: Objection, Your Honor. Again, it's leading


and, I think, lacks foundation .
171

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THE CO URT :

MR . PEEK : Assumes facts not n evidence .

THE COURT : He asked him did it precipitate a

conversation . That may be a little bit. leading.

5
6

MR . PEEK :

THE COURT : D id you give him the tapes: and was there
a conversation about the tapes after you gave him the tapes?

9
10

THE W ITNESS :

I received tapea, and there was

something on the tapes that was of interest .

11
12

ft ls also speculative as to whether the

tapes themselves --

7
8

W ell - -

THE COURT : A11 right. And did you have a


conversation with Mr . Trepp about that?

13

THE WITNESS :

14

THE COURT: A l1 right.

15

16

Yes.
Go ahead .

BY MR . FLYNN :

Q.

And did the nature of the tapes and what was of

17

interest to this agency relate to the conversation you had with

18

Mr . Trepp?

19

MR . PEEK : Again r Your Honor, this goes back to not

20

being allowed to cross-exam ine because this is -- again, you're

21

going to say this is top secret, national secret' I canlt talk

22

about it, talk about it# so --

23
24

THE COURT: Wellr we don 't know if hels going to say


that . I want to see what he says, and then we 'll see where we
172

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go wlth that.

1 mean, one of the things that occurs ko me is that

where one side of a case or the other relies upon a privilegez

then I can take that into consideration with regard to whether

or not the other side has been provided with the information

they fre entitled to be provided with .

BY MR . FLYNN :

8
9

Q.

Having that jn mind, Your Honor -- did you share what

was on the tapes w ith Mr . Trepp?

10

A.

Yes .

11

Q.

And then did you have a conversation about money or

12

your ownership or interest in eTreppid Technologies with

13

Mr . Trepp?

14

A.

And what time frame is this, again?

15

Q.

At the time the tapes were given .

16

A.

Yes.

17

Q.

And what was that conversation?

18

A.

I wanted to know how I was going to be eompensated .

19

Q.

If you did the work on the tapes?

20

A.

That ls correct .

21

Q.

And what did he say?

22

A.

He would work it out .

23

Q.

D1d you go ahead and do the work on the tapes?

24

A.

Yes .
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tapes?

A.

V..
w

And whose technology was used to do the work on the

Well, there were two pieces. The plece o f facial

recognition and video recognition was eTrepp id 's.

detection was mine .

The anomaly

Q.

And how much was being paid during that time frame?

A.

Wellz f think t.hey -- f think that was close to

2O0w000.

Q.

A fter doing the work on the tapes, did you, aa the

10

chief technology officer and then as the owner of the anomaly

11

detection software, make any conclusions about the reliability

12

of your software?

13

A.

I thought lt was very reliable .

14

MR. PEEK :

15

THE WITNESS :

16

17
18

19
20

I'm sorry .

What?

.
Lt was very reliable .

BY M R . FLYNN :

Q.

Did you have any conversation with Mr . Trepp about

that reliability?

A.

I don 't think initially at that exact time frame .

Later on r I think we did .

21

Q.

And what was that conversation?

22

A.

He wanted to know how con fident 1 was that the data

23

was correctz and 1 told him that 1 believed it was .very

24

accurate.
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Q.

And did you ever have a conversation about :he value

of your technology at that point?

A.

Sometime in 2004, is that --

Q.

Yes.

A.

Yeah .

7
8

Wekl, he told me he asked for a billion dollar

bond from the U .S . Government .

Q.

And did you have a discussion with him about how mueh

he wanted to sell the tecbnology for?

A.

I believe inttially it was 500 million .

10

Q.

And did you have a discussion with him about what part

11

of the 5O0 m illion would belong to you and what part would

12

belong to him?

13

A.

Yes .

14

Q.

And what was that conversation?

15

A.

T was concerned that I wBs qoknq to get my fair share

16

17

of that .

Q.

A11 right . Nowp in September of 2004, was the

18

government contract -- that phase of the government contract

19

coming to an end?

20
21

22
23

24

A.

I believe at September 31str that -- the next phase

was going to be completed .

Q.

And did you have a conversation with Mr . Trepp abouh

extending the contract for another three months?

A.

The people that were here from the governmenk stated


175

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3

they wanted to extend it .

Q.

And did you have a conversation w ith Mr . Trepp about

extending it?

A.

Yes .

Q.

What was that conversation?

A.

He wasn 't gong to .

Q.

And did you have a conversation w ith him as to why he

wouldn 't?

A.

10

money .

11

Mr . Trepp wanted to move on to some other work.

12

Q.

At the time -- the initial time is that we wanted more


We, meaning eTreppid, had wanted more money and

And so did you go forward and do -- continue -- did

13

you continue processing work for this particular department of

14

the government?

15
16

A.

We continued processing, I believe, until after

Thanksgiving of 2004.

17

Q.

And were you using your anomaly detection software?

18

A.

Y es .

19

Q.

And did you a conversation with M r. Trepp in the fall

20

of 2004 about the fact that it was your software that you

21

owned?

22

A.

Yes.

23

Q.

Now z at some time, did you have a conversation w ith

24

'

the government from this particular department about protecting


176

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the software with jntrusion devices?


A.

Well, early oru they told us --

MR. PEEK: Objection, Your Honor. Hearsay.

THE COURT :

Well, I1m going to allow it .

Ive allowed

quite a bit of hearsay in this case anyway.

whether or not itls been being offered for the truth of it or

not, or whether it's being orfered to explain the question that

was asked .

Go ahead .

10
11

11l determine

THE WITNESJS:

2 belleve, in early 2004, they suggested

what they wanted to do to protect the systems.

12

MR . PEEK : Could We have who the ''they'' is .

13

THE W ITNESS :

14

MR . PEEK :

15

The government.

Can we have Air Force, person, individualz

nam e .

16

THE W ITNESS : Not the Air Force, the other group .

17

MR . PEEK : What was the name of the other group?

18

THE W ITNESS :

19

MR . PEES ;

20

I1m not going to say .

That's my problem agaln, Your Honorr hiding

behind the privilege .

21

THE COURT :

I understand .

22

MR . FLYNN : We 're not hiding behind anything, Your

23

Honor. W elll allow Mr . -- we'll enable a number of procedures .

24

Either it goes to a judge who has a security clearance on this


177

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level, which is called for under tbe act, or we lll enable

Mr . Montgomeryz Mr . Trc3pp to go into chambers so the Court can

verify it, or we bll enable -- we All allow it ho go over to

federal court. Your Honor, we rre not Kidlng behlnd anything.

THE COURT :

l don 't know how jt's going to go over to

federal court . It's already been bumped out once . Al1 I1m

saying al1 day is cite me the statute that says that he can

say, HIm not going to answer the question .'' I 'm perfectly

happy with the idea that if he possesses information that 's

10

classified, he probably shouldn 't, and has probab ly been told

11

not to say it. But I need some authority so that I can make a

12

reasonable, decent decision on this issue without speculating

13

about it. Now --

14

BY MR . FLYNN :

15

Q.

Under the contract you signed with the government,

16

were you made an agent of the government in connection with

17

this software technology?

18

19

A.

I believe so.

MR . PEEK : Your Honors again, 1 move to strike that.

20

He saidz ''I believe so,'' ''I don 't have the contracty'' ''I don 't

21

know what it says .'' 1 can't cross-examine him on that. He

22

says, ''I didn 't get a eopy of it.'' Everybody else had it .

23

24

THE COURT : 1#m not even sure that this relates to any

of the issues in the case . And 1dm not -- you know, I'm not
178

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going to tell you how to try your case . But to me, I'm not

concerned about what it says or what it doesn 't say.

even care what agency it is .

MR . PEEK :

I don 't

I care, Your Honor, because of the

inference here that 1 was directed to put intrusion software,

and it is the intrusion software that, if there was any

deletion, that deleted a11 of tbis.

affidavit from the Air Torce, who is m anaging this, a 1ot of

these contracts --

10

11

When we and get an

BY M R . FLYN N :

Q.

Mr . Montgomery, in connection with this particular

12

work and the intrusion deviees, did the Air Force manage this

13

aspect of it?

14

A.

No.

15

Q.

And did you put the intrusion devices on?

16

A.

Yes .

17
18

MR. PEEK: Same objection, Your Honor.


BY M R . FLYNN :

19

Q.

When did you put the intrusion devlces on?

20

A.

I believe it was February of 2003.

21

Q.

And what are the intrusion devices?

22

Court how they work .

23

A.

24

with you .

Explain to the

ls that classified?

I don 't really know whether it is or not, to be honest

179

CECILIA VOSIS NV CCR #246 (775) 827-0672

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1
2
3

Q.

Well, generically, can you describe to the Court what

happens if someone tres to access it?


A.

The government group was very concerned that someone

would walk in and take a computer out of the building,

physically take it out. And since the room that we had in the

building was not big enough to hold a1l the computers, they

wanted some form of protection so that those computers coulz

not be taken out of the building and accessed .

Q.

And how -- and did you load these devices onto these

10

compu ters ?

11

A.

Yes.

12

Q.

And how does the software, basically, work? Does

13
14

It 's software .

it -- what does it do ?
A.

Well, it ls des kgned to get a response over some period

15

of time, and if the response hasn 't been given to it or the

16

responses are incorrect, it w ill purge itself.

17
18

Q.

And did anyone at eTreppid know that thatfs how this

system worked?

19

A.

I don 't think so .

20

Q.

I mean, in terms of the details of the technology.

21

A.

No, no .

22

Q.

In terms of the generic nature of the fact thak it

23

24

existed, did M r. Trepp know?

A.

1 don 't know if he did or not.

I suspect he talked to

18O

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Case 3:06-cv-00056-PMP-VPC
Document 644-21 Filed 05/28/08
Page 182 of 207
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the same government people that I did: that he m ight have

kn own .

Q.

Now --

THE COURT: Let me just stop and ask a question.

Do the lawyers know what agency we're talklng about?

M R . FLYNN :

Y es .

THE COURT :

Do you know?

MR . PEEK :

THE COURT : Your client has not told you?

10

know?

No , 1 don ft .

You don 't

You don 't know?

11

MR . PEEK :

1 -- I don 't know .

12

MR. FLYNN :

f doz Your Honor.

13

(Whereupon, Mr . Peek has a conversation with Mr . Trepp

14

I will ask Mr . Trepp .

off the record .)

15

MR . PEEK ; Yes: I do know .

16

THE COURT : A l1 right . Approach .

17
18

(A discussion was held at the bench out of the hearing


of the reporter.)

19
20

THE COURT : A11 right. Go ahead .


interruption .

21
22

23
24

I'm sorry for the

MR . FLYNN : Thank you, Your Honor .


BY MR . FLYNN :

Q.

Let 's fast-forward a little bit . The work ended with

this particular agency at some point in time; is that correct?


181

CECILIA Voffls NV CCR #246 (775) 827-0672

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A.

Y es .

Q.

And that was after Thanksgiving of 2004?

A.

Yes .

Q.

And were there conttnued negotkations w ith that

departm ent thereafter?

A.

My undersLanding was that that group wanted the

Air Force to get involved .

Q.

And during 2004 -- just yes or no -- were there

individuals in the U .S . Government at the highest levels at

10

eTreppid Technologies?

11

A.

12

Yes .
THE COURT:

What is ''the highest levels''?

13

mean was President Bush there?

14

me .

15

BY MR . FLYNN :

Does that

That doesn 't mean anything to

16

Q.

Was Warren Trepp there?

17

A.

Yes .

18

Q.

So he knows who these individuals are?

19

A.

Yes .

20

Q.

Now , at the end of 2004, did you and Mr . Trepp begin

21

to have discussions -- heated discussions about who owned --

22

strike that -- about how you were going to be paid going

23

forward if there were fklture governmental contracts?

24

MR. PEEK: Objection. Leading, Your Honor: as to


.

.- .

.-

.-

.- - .. - .

.- .........

.
.-

182

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w NV CCR #246 (775) 827-0672

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iqlr:

''heated .'' They had dscussions .

B Y M R . FLY NN :

Q.

Okay. Did you have discussions?

THE COURT : A ll right.

T HE W ITNE SS :

Yeah .

Yes .

BY M R . FLYNN :

Q.

And how would you characterize the development of the

relationship towards the end o f 2004 and going into 2005, with

M r . T repp ?

10

A.

It was getting stra tned .

11

Q.

And what was the nature of the conflict?

12

A.

Well: 1 had been promisedz um, to get this worked out,

13

14
15

and t never gets worked out .

Q.

And did Mr. Trepp ever dispute that you owned the

anomaly detection software?

16

A.

No .

17

Q.

Tn late November of 2005, did you have a conversation

18

with M r. Trepp about how much had been paid by the government

19

in connection with these various top secret projects?

20

A.

Yes.

21

Q.

And how much did Mr . Trepp say had been paid?

22

A.

1 think he said around 10 to 12 m illion .

23

Q.

What was your -- your understanding of how much had

24

been paid?
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A.

In the two years?

Q.

Yes.

A.

I think more closer to 18 mil Lion .

Q.

And in early December of 2005, did you have a

conversation of how much was in the bank and you wanted to see

the bank statements?

Y e5

Q.

What did you say to him?

A.

''l want to see the bank statements.''

10

Q.

And what did he say?

11

A.

He never showed it . He didn 't say anything . He never

12

showed it .

13

Q.

14

15
16

And after this conversation in early Deeember of 2005,

did he say anything about giving you any money?

A.

Well, T told him I needed a couple hundred grand . Is

that the question?

17

Q.

Yeah .

18

A.

Y es .

19

Q.

So what did he do?

20

A.

In Decembere I don 't remember the exact date . It must

21

have been around -- I think around the 10th or som ething, he

22

gave me either 125 or l50 thousand .

23
24

Q.

And what was your understanding as to what that was

for?
184

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A.

Once again, he said he 'll work it out.

Q.

And 1et me show you Exhibit 18. Did you have a

conversation about Exhibit 18 with Mr . Trepp ln the end of

December of 1052

A.

He brought me two documents, this being one of them --

1 don 't remember the other one -- and told me that he wanted me

to sign it .

Q.

And what did you saA


g?

A.

HI won lt sign it.''

10

Q.

And is that your s.gnature on Exhibit 18?

11

A.

No .

12

Q.

Did you ever sign any document like that in front of

13

this individual, M r. Bora?

14

A.

No.

15

Q.

Who is Mr . Bora?

16

A.

Gellay's (phonetic): which is Warrenls wife's brother.

17

Q.

And based on your knowledge of your own signature, is

18

19

20

that signature forged?

A.

Tt's not m ine.

I didn 't sign it .

MR . FLYNN : And at some pointr Your Honorz I1d ask the

21

Court to compare that signature to the signatures on al1 the

22

other documents with M r . Montgomeryls handwriting that have

23

been introduced .

24

MR . PEEK : Your Honorr I think that -l85

CECILTA MOSZ, NF CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 187 of 207


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2

THE COURT :

I've already done that .

But my question

is, where is the original?

MR . PEEK :

We have the original, Your Honor .

I guess

wedre going to have to submit it to forensics now , questioned

document examiner, now that Mr . Flynn 's client denies, contrary

to the testimony of Mr. Treppz signing it and that of the

witness who witnessed it.

THE COURT : Wel, I can 't tell you what to do .

MR . PEEK :

10

I'm not going to dc) it today . l don t

thin k I need to do it for this purpose.

11

THE COURT :

12

MR . PEEK :

13

J know what I would do .

1 certainly wouldn 't ask the Court to

compare it to others.

14

THE COURT :

i think it's within the layperson ls

15

ability to compare signatures and make judgments, but not --

16

I'm not really going to engage in that exercise for that

17

purpose. I was just curious.

18
19

20

'

-?

MR . PEEK ; Are we about done here?


BY MR . FLYNN :

Q.

Mr . Montgomery, you bve heard al1 of this testimony

21

about the various deletions during the January period in 2006,

22

files missingz et cetera, raid boxes gone.

23

Would you describe to the Court what you did in your

24

relationship with eTreppid Technologies in January o f 2006 in


186

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connection w ith any of the software that was presen: in the

company .

A.

I got called -- Mr . Trepp was getting ready to leave

on a cruise .

I don 't zemember which week that wasr if it rs the

week of the 8tb . And J planned on taklng the week off because

he was going to be gone also .

And 1 got a call on, 1 think, Monday morning from

Mr . Trepp saying that I need to come down to the building .

9
10

11
12

Q.
that?

And what was the nature of that discussion other than


Was there anything else?

A.

No, he just sasd, ''You need to come down here right

now .''

13

Q.

And what happened?

14

A.

I had another commitment, and I couldn 't come down

15

that day .

16

Q.

So then what happened?

17

A.

He called me either -- he left a message on my phone

18

that night, saying I needed to come down there tomorrow

19

morning.

20

Q.

Did he tell you why?

21

A.

No, he just said it was important, I needed to come

22

down .

23

Q.

Did you go down the next day?

24

A.

Yes .
187

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Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 189 of 207

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....

Q.

And then what happened?

A.

1 entered thrtlugh the warehouse, and I saw a11 of

these people going through a11 the hard drkves.

Q.

Okay . What date was Lhat?

A.

It's the -- it would be the Tuesday .

1 don 't know --

I don 't know which day lt is . January.

Q.

The Tuesday -- the second week in January?

A.

Yes, the second week in January .

Q.

And did you have any foreknowledge that these people

10

would be going through the hard drives?

11

A.

No.

12

Q.

Were they going through the hard drives in this area

13

here (indicating), this area near --

14

Yes

15

Q.

-- on Exhibit l --

16

A.

Yep . Yes .

17

Q.

-- which webve called Dennisrs, Mr. Montgomery's, work

18

yes .

'

area?

19

A.

Work area, yes .

20

Q.

And were those a11 government computers?

21

A.

Yes .

22

Q.

What was the value of those computers?

23

A.

M y guess, 350,000-plus .

24

Q.

And when w ere those computers brought in to eTreppid?


188

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Case 3:06-cv-00056-PMP-VPC
Document 644-21 Filed 05/28/08
Page 190 of 207
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MR . PEEK :

January 2004.

BY MR . FLYNN :

8
9

Q.

December 2003, I believe, or

And did a particular braneh of the government bring

those in?

A.

T -- we ptlrchased them on behalf of the government .

They were government computersr and we purchased tbemw one from

10

each group .

11

Q.

12

Counselx I can't see the witness answer the

THE WITNEE;S:

....

question .

k...

So 1 don 't know which group belonged to wh ich one.

Did -- at some point, did the government bring in

computers that you didn lt purchase?

13

A.

Yes .

14

Q.

When did they bring those computers in?

15

A.

I believe January of 2004.

16

Q.

And what was the value of those computers?

17

A.

Three million .

18

Q.

And --

19

MR. PEEK: Objection. Move to strike. There's no

20

foundation for thts testimony that the value of the camputers

21

was $3 million.

22

23
24

MR . LOGkR : What difference does it make?

That's not

an oblection.
THE COURT : Hold on . Hold on . Hey, guys: listen to
189

CECILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 191 of 207


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me . Hey, no, listen . Wefre getttng late here tonight.

easy to get carried away and have exchanges, but I want to

m aintain reasonable order in here . So if you have something to

say, say it to me.

5
6

lt 's

And likewise to you, if you have something to say, say


lt to me .

So wbat we 'll do --

MR. PEEK: My objection, Your Honor, was lack of

9
10
11
12

'

foundation and qualification as to what the value is, as well


as the relevance here.
THE COURT: A1l right. Well, first of all, what is
the basis for your knowledge o f the value of the computers?

13

THE W ITNEGS: You bre asking me, Your Honor?

14

THE COURT :

15

THE W ITNESS;

16

Yes .

I Gas told that was the price by the

government.

17

MR. PEEK: Objection. Hearsayr Your Honor.

18

THE COURT :

19

20

I don 't know that I see the relevance .

What s the relevance?

MR . FLYNN : The relevance, Your Honor, is that the

21

government b rought those computers in because of

22

M r. Montgomery 's ownership of the anomaly detection software .

23

24

THE COURT: Well, that 's your conclusion . But 1 meanz

I don 't know that there's any evidence here from which we can
l90

CECILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 192 of 207

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conclude thaL that's noL hearsay.

BY MR . FLYNN :

3
4

5
6

Q.

Mr . Montgomery, why did the qovernment bring the

computers in?

A.

They wanted us to run the anomaly detection software

on a11 the computers.

MR. PEEK : Again, Your Honor, objection. That's

hearsay.

That calls for hearsay from the government as to why

they were there .

lt had to have come from a hearsay statement

10

from a government official, as opposed to pursuant to a

11

contract .

12

THE COURT ;

1 understand that, but why they brought

13

them is pretty apparent to mez to run the programs.

14

question 1 was concerned about was: why is it -- the cost of

15

those programs, why is that relevant?

16

had .

17

BY MR . FLYNN :

18

Q.

But the

That was the question I

The m agnitude of the work that was being done with

19

regard to anom aly detection that warranked the contract price

20

had to do with how quickly you could process the information;

21

is that correct?

22

A.

Yes.

23

Q.

Now, continue with your -- you had no forewarning of

24

the fact that the people in eTreppid would be trying to access


191

CECILIA MOSDZ NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 193 of 207

(),,V.

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the hard drives?

A.

No .

Q.

And were they also in this area called the private

4
5
6

-1

room (indicating)?
A.

Not that 1 know of.

I only walked in through the

warehouse up the back stairs to Mr. Trepp 's office.

Q.

And did you have a conversation with Mr . Trepp about

what these people are doing w'ith these hard drivesz would do

w ith the software?

10

A.

Yes .

11

Q.

What did you tell them ?

12

A.

1 was surprised that he was letting people with no

13

classification dismantle disk drives.

14

Q.

And what did he aay?

15

A.

He s looking for the software .

16

Q.

And who d id you see working on this -- on these hard

17
18
19

drives?
A.

M ichael Salvetek, Jim Bauder, Jesse Anderson ,

Venkata Kalluri .

20

Q.

Did any of these people have government clearances?

21

A.

Jim , I believe -- orz Jesse, I believe, did; the

22

others, no .

23

Q.

24

And when you confronted them w ith the fact that they

weren 't allowed or permitted under the contract with the


l92

CECILIA vog.nz NV ccR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 194 of 207

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government to do that, what d id he say?

A.

That he 's orderLng them to do it, Mr. Trepp is.

Q.

And did he tell you why?

A.

No .

MR . PEEK :

Your Honorw can We move on?

11m going to

object. This is just dragging on and dragging on to be a

filibuster, and denying me the opportunity to eross-examine .

It 's now 8 o 'clock .

9
10

MR . LOGAR: Is there an objection, Counselr to your


statement?

11
12

THE COURT : Again, conversation -- 1 want conversation


direct to Lhe bench .

13

MR. LOGAR: It's just speaking objections.

14

THE COURT : I understand that . But 1 really am having

15

a lot of difficulty seelng how this ties into the issue here .

16

We rre almost at an hour now for your zo-minute examinationz so

17

please hurry up .

18

BY MR . FLYNN ;

19
20

Q.

Did what they do destroy any of the softuare in any of

the source codes?

21

A.

Possibly, yes.

22

Q.

The source codes with regard to anomaly detection

23

24

software, where are they?

A.

In the building .
193

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2

Q.

q.
w

And how many lines of code do they -- exist,

Mr . Montgomery?

A.

Half a m iltion-plus .

Q.

And do you know whether, when they tried to access the

software, any of those lines of code were destroyed?

A.

It could have been .

Q.

And are those lines -- are the source cddes to access

those lines of code also in your head?

A.

Yes .

10

Q.

And are those the same -- is that the same anomaly

11

detection software that you copyrightecl back in 1982?

12

A.

Yes .

13

Q.

And explain to the Court why that is the case, namely,

14

15

16

17
18

that theyere identical.

A.

Wellr I meanr Tfm the one that did a1l the original

work on the anomaly detection software.

Q.

Did you destroy or take any files or hard drives or

anything from eTreppid Technologies?

19

A.

No .

20

Q.

And is there anyone at eTreppid Technologies today, to

21

your knowledge, that has the capability to determine what's

22

there and what isn ft there in connection with the government

23

contract on anomaly detection?

24

A.

I don 't think so .


194

CECILTA VO1fZ, NV CCR *246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 196 of 207

0.

So they wouldn 't even know how to do it?

A.

That's correct.

Q.

Have you heard any testimony from Mr. Venable or

Dr. Sun or anyone else that would indicate they have any

knowledge or expertise whatsoever, or the expert that was

calledz as to how to access the anomaly detection codes inside

eTreppid today?

'

A.

No .

Q.

Are you the only one?

10

A.

I don 't know that for a fact, but I would suspect

11

12

that s probably the ease .

Q.

In connection with your conversations with Mr . Trepp

13

in the presence of governmental agents, d1d some of those

14

conversations relate to the fact that you were the only person

15

on the planet that could do this anomaly detection?

16

A.

They just want -- I don't know if they said it exactly

17

like that , but up until that pointz We were the only ones that

18

were able to get out these kinds of results.

19

20
21
22

23
24

Q.

Do you know of anyone else that, you knowz deleted

files at eTreppid Technologies?


A.

Well, a11 the programmers, from time to time, did that

on their own .

Q.

But do you know of anyone Who deleted files who

shouldn 't have been deleting files?


l95

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. .,
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u. .
.

A.

No .

Q.

Did anyone contcol your work, ever, at eTreppid

Technologies?

A.

What do you meaa by that?

Thatls --

Q.

With regard to Bour -- first, your data compression

type of work, did, say, anyone instruct you or supervise you on

how to do that type of work?

A.

No, no .

Q.

With regard to your anomaly detection workz did anyone

10

ever instruct you or supervise you in any way on how to do that

11

work?

12

A.

No .

13

Q.

And in regard to the anomaly cietection workz that was

14

work that you distinctly understood as far back as 1982; is

15

that correct?

16

A.

Yes .

17

Q.

Did anyone else have the skill at eTreppld

18

19

Technologies to do the --

MR. PEEK: Objection . Lacks foundation as to how he

20

can evaluate somebody else's skill, given the fact he only has

21

an associate's science degree.

22

THE COURT : Well, I think you could evaluate it based

23

upon your experience, education, training, et cetera . Dut the

24

better questkon , 1 think, is how does he know what their level


196

CECILIA vollL, NV ccp #246 (775) 827-672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 198 of 207

tt-?
1

was?

B Y MR . FLYNN :

(-.
r.,
.

Thates the thing f?m concerned about.

Q.

Based on al1 your years in working with all these

peoplez are you aware what skill levels these various

individuals had that were computer programmers at eTreppid?

A.

Yes .

Q.

Did anyone have the sklll level other than you to do

anomaly detection?

A.

Probably not .

10

Q.

And the instruntents and the tools that were used by

11

you to do the anomaly detection, was that based on the

12

copyrights that you --

13

A.

Yes .

14

Q.

-- filed back in 1982?

15

A.

Sorry .

16

Q.

With regard to the intrusion technology,

17

Yes .

M r. Montgomery --

18

A.

Ye s .

19

Q.

-- was there some type of a system set up by you that

20

required a response, and if it didn 't get a response, it would

21

start self-destructing?

22

A.

Yes .

23

Q.

How did that work?

24

A.

You set the time frame, and you had to respond within
l97

CECILIA VO11fp NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 199 of 207

t?

():,,.

.--

that period of time frame . And if you didn rt, it would purge

itself.

Q.

And as you sit here today, do you have any

understanding as tc) whether that may have occurred at eTreppid

Technologies?

A.

Well, since I was locked out of the building and 1

could never go into it, 1 suspect it probably happened .

MR. FLYNN :

That's all 1 have, Your Honor .

THE COURT: Al1 right. Let me just stop and ask a

10

question, which is p robably going to not make any sense. But

11

therels been an amended eomplaint filed on the 1st o f February.

12

Obviously, time to answer it hasn 't expired, but there hasn rt

13

been an Answer filed, at least as far as I can see .

14

15
16
17
18

19

MR . PEEK :

There's an Answer to the earlier, but not

to the am ended one, that's correct .


THE COURT : 1 didn lt find that in my file, but was -were there any counterclaim s'
?
MR . PEEK :

There is a counterclaim , Your Honor, for

copyright infringement contained within the counterclaim .

20

THE COURT: A 11 right. Let me ask you a question .

21

During the time that eTreppid was being paid for

22

this -- for the use of this copyrighted material by the

23

governmentz which you claim belongs to you, did you ever object

24

to the government and say, wait a minute, that 's my material,


198

CECILIA MOSiw NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 200 of 207

,-.)

qvu

that ls not eTreppid's m aterial?

THE WITNESS:

not .

THE COURT : Well, go ahead, Mr . Peek.

MR . PEEK :

1'> happy to hear from the Court .

If ih

will shorten the proceeding, 1fm happy 'to hear from the Court .

8
9

f was going to

open my big mouth abou: something .

6
7

L don 't recall, Your Honor, if 1 did or

THE COURT ; Wetl, 1et me tell you, counsel for both


sides, kind of how I th knk 1m seeing this: but 1'm prepared to

10

be persuaded otherwtse. But maybe that will b e helpful . 1

11

know , when I was a practicing lawyerz I kind of lked to know

12

sometimes what that judge was thinking about. Not always happy

13

to know, but I kind o f wanted to.

14

And it seems to me that the agreement that was

15

originally enterect may or may not cover the technology that

16

we're talking about . But certainly, at some point in time, by

17

conduct or agreem ent, oral or by conduct and b y performance, it

18

was agreed that eTreppid could market this technology and

19

didn 't market this technology to this agency of government and

20

that a11 the parties acknowledged that it was eTreppid 's to

21

market .

22

%he problem arises with regard to a further agreement

23

or further compensation or other issues that may be the subject

24

of a very meritorious counterclaim . Whether it 's meritorious


199

CECILIA Voffiz NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 201 of 207

t.:rr?

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or not, 1 have no idea. But I don 't -- at this point in time,

I1m not -- it would appear to me that the technology was indeed

conveyed to eTreppd to market and sell to the government and

that the government paid eTreppid for that.

Now, if there was an agreement that there would be

compensation for it later and that agreement wasn ft honored,

that 's part of the counterclaim . If there ls an agreem ent that

copyrights were infringed, that's part of the counterclaim .

But as to the ownership of it, it would seem to me:

10

like I said, b y conduet, by oral understandingz that it was

11

agreed: yeah, this belongs to eTreppid and I'm going to get

12

compensated for it later .

13

in . So tell me where I !m wrong about that.

14

That's where the counterclaim s come

MR . FLYNN ; Your Honor: w1th a1l due respect, black

15

letter law -- and we have a brief on it -- says Lhat no

16

copyright --

17

THE COURT : Title 17, right?

18

MR . FLYNN :

19

20

-- no copyright can be given under these

circum stances without a written assignment .

The closest they can qet is the Work For Hire

21

Doctrine . We have -- a atate court is absolutely preempted,

22

under case 1aw statuter from using trade secret, from using

23

conduct, from using lmplied agreement, to breach the provisions

24

of the copyright act . The most that they could qet is a


200

CECILIA MOSZ, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 202 of 207

r'
.)

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.-

nonexclusive, oral license under the conduct .

And as I say, Your Honor: we have the brief.

ready to subm it the brj-ef to the Court.

4
5

We 're

THE COURT : Olu it hasn 't been subm itted to me yet?


I 'm familiar with Title 17.

MR . FLVN-N :

TL hasn't been submitted.

THE COURT : And 1 think l knov' the section that you rre

talking about.

are we doing in state court?

10

But 1 mean, if that's the case, what the heck

Why aren 't you guys in federal

cou rt ?

11

MR . FLYNN : The only reason welre here is the Court

12

simply said: you can't remove it based on the counterclaim .

13

But we fve already filed over in the federal court.

14

Sor no matter what this Court does --

15

THE COURT :

16

MR . PEEK : You dre not wasting your timez Your Honor .

17

THE COURT: Well, why don't you just let me do it, and

I'm wasting my time?

18

then you can go to federal court and do whatever federal court

19

does .

20

MR. FLYNN : Your Honor, because it's just so

21

flagrantly incorrect: under the copyright law, for a state

22

court to -- in effect, eo give away a copyright, which is the

23

clear basls of the record at this point in time, with no

24

reputation, with no meeting of any burden of proof to the


201

CECILLA Morlz NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 203 of 207

)
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q;w

..

contrary . Based on a11 the case 1a< and the brief we lve got

for the Court, it siutpky cannot be done .

THE CGURT : A 11 right . See, 1'11 have to consider

that .

the section you 're talklng about.

I meanz 1lm aware of Title 17.

I'm aware, 1 thtnk, of

1'm just zooking at this from the standpoint of

regular contract . If it can 't be done, then we go back to the

issuez and I determine whether or not, in fact, it was in

writing and Ghether the writing ks sufficient to convey that

10

and whether conduct can supplement it or expand upon that

11

agreement . Those are the things that 1'11 have to take into

12

consideration . And I'm not necessarily going to decide it now;

13

11m just telling you the contents ln my head.

14

MR . FLYNN : YeE;, Your Honor . See, on that point r

15

we bre -- the contract clearly says only CD Number 1 has been

16

given . I do not see how you can possibly get outside of that

17

where you lre not dealing with an employee, you 're dealing with

18

a founder and a principal and an independent contractor.

19
20
21

22

THE COURT : Well, that 's something 1:11 have to decide


when I take that into consideration .
MR . PEEK : And a fiduciary duty as a membr of the

LLC , Your Honor, with partnership fidueiary responsibilities .

23

May I go ahead and cross-examine?

24

THE COURT : Yeah, go ahead .


202

CECILIA VOHLz W

CCR #246 (775) 827-D672

'- -

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 204 of 207

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1
2

MR . PEEK ;

I unclerstand where the Court is . I may b e

able to shed some liqht c)n this , as well .

3
4

THE COURT REPORTER : May I say, for the recordz I 'm


getting really tired .

5
6

MR . PEEK : l 'Ll be slow , Ms . Vohl .

1 don 't agree wit.h

that , but -- T don 't bel ieve that .

7
8

CROSS'-EXAMINAT I()N

10

11

BY MR . PEEK :

Q.

Let 's talk a llttle bit , Mr . Montgomeryr about , as you

12

say, the anomaly detection, which you say you copyrighted as

13

part of your work at Computermate ; ia that correct?

14

A.

Yes .

15

Q.

And that was related to blood gas analysis?

16

A.

Nell, it related to blood gas analysis .

l7

Q.

M d the blood gas -- the blood is being drawn from

18

time to tkme by techs and teshed as to what its gases are?

l9

A.

Yes .

20

Q.

M d those gases have to be within a certain range, do

21

they not, have a certain medical range where they might show

22

that there 's something w rong wth the patient?

23

A.

Is that a question?

24

Q.

Yes. Is that correct?


203

CECILIA lz
r fffzs NV CCE 11246 (775) 827-0672

'

-- -

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 205 of 207


(
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u

..

tsT

A.

Yes .

Q.

And your anomals' detection portion of the blood gas

was, you said that lqhe range for certain levels of blood gases

would be a percentage for hydrogen, oxygen, nitrogen, carbon

dioxide, th ings o f that nature?

A.

1 don 't understand your questlon .

Q.

Well, you tre determiningr are you not, whether or not

a person 's blood gases contain more hydrogen, carbon dioxide,

or oxygen than they are supposed to?

10

A.

No .

11

Q.

What are you testing for, then?

12

A.

I've never tested for hydrogen. You lust used

13

14
15

What is the anomaly?

hydrogen as an example.

Q.

Okay. But you were testing for other blood gasesr are

you not?

16

A.

Yes .

17

Q.

And there are medical ranges Eor b locd gases, are

18

there not?

19

A.

Yes .

20

Q.

And if those blood gases fall outside of those ranges,

21

that would be an anomaly; is that correct?

22

A.

No . That would be abnormal.

23

Q.

Well, whatfs the anomalyr Lhen, that is being tested,

24

the anomaly detectlon that you 're determining with your blood

CECILIA Vsffzz NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 206 of 207


(.. ,...
.

1
2

k)

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gas analysis?
A.

You lme shooting light through bloodz and a spectrum is

being produced . Am d that spectrum, depending on which value

you fre lookinq for, determines the spec- -- you look for each

of the variab les in a different range in the spectrum .

Q.

You dre looking for, as 1 understand it, certain gases?

A.

Patherns .

Q.

Patterns?

A.

Patterns .

10

Q.

What are the patterns?

11

A.

Well, a gas shows up at a certain spectrum and has a

12

13
14

certain appearance .

Q.

Can you show me within Exhibit 19 where it talks about

anom aly detection?

15

A.

You want me to read this whole thing?

16

Q.

I want you to -- it's your book, is it not?

17

A.

lt's been 20 years .

18

Q.

Ohz so you haven't looked at this book for 20 years,

19

Mr . Montgomery; is that correct?

20

A.

No .

21

Q.

Well, what -- when was the last time you looked at

22

this book, sir?

23

A.

Two weeks ago .

24

Q.

When you looked at it two weeks ago, did you find the
205

' - ' - ' - - -

CECILIA UO:rZs NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-21 Filed 05/28/08 Page 207 of 207

(
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l

phrase ''anomaly detection'' anywhere within 1t?

A.

I donlt recall if 1 did or not .

Q.

Is there anything in there that you would characterize

as anomaly detection?

1(
E it is, point us to it .

A.

The software .

Q.

Well, point us to someplace in that book that

describes anomaly detection.

A.

I'm not sure this book describes anomaly detection .

Q.

Well, what about Expzibit 21, which is part of -- came

10

out of that -- or Exhibit 20, I thinkr that came out of that?

11

A.

The copyrightsE

12

Q.

No, no . The Exhibit 2Oz which was the excerpts from

13

that: where in those documents that are excerpts from

14

Exhibit 19 does it describez as you sayz anomaly d etection?

15
16

17
18

A.

The center screen is the output of the determination

of that anomaly .

Q.

Okay . Can you then tell me -- point me, thenz to that

exhibit .

19

A.

Am I done with this book?

20

Q.

Pardon?

21

A.

Page 22 in the middle .

22

Q.

Page 22?

23

A.

Yep .

24

Q.

Okay. So this is what you describe as being anomaly


20 6

CECILTA VOJ/ZZ NV CCR #246 (775) 827-0672

-- - -

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 1 of 87


---4
.

u .-;

detection?

A.

Excuse me .

Q.

Okay .

A.

Wellz the hlood hadn't been ejected yet.

Q.

Oh: okay. So on 32z there is something there that you

6
7

32 .

I apologlze . 32 . Well, what 's on 22?

say relates to anomaly detection . Where do we see that?


A.

You -- you see the value that is displayed, tells you

the peak of the detection of the anomaly, and that peak has a

qualifying amount .

10

Q.

Where am 1 reading that?

11

A.

Welly see: a number like 29z as an examp lez for

12

bicarbonate.

13

Q.

For what?

14

A.

For HCOa.

15

Q.

Is it in the middle column?

16

A.

Yes, 29.1.

17

Q.

29.12

18

A.

Y eah .

19

Q.

That's a detection of an anomaly?

20

A.

That gives you the size of the anomaly, that 's

21

()rrry

correct .

22

Q.

How do I know that's the stze of an anomaly?

23

A.

I Just told you it Was.

24

Q.

Oh: just beeause you tell me it was.


20

CECILIA VOSZZ NF CCR #246 (775) 827-0672

'- .-

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 2 of 87

J
1

It saysz over herer if 1 read across the column on

Exhibit 20 -- the middle column has no heading; iL just says

''Corning 178-3 1/1/-j6 '' Is ,'1/1/76'1 Lhe date?

Is hhat a date?

A.

1 believe jt looks like a date .

Q.

Okay . And then HCO 2 -- what does HCO 3 stand for?

A.

Blcarbonate.

Q.

And then it says ''29.1.N How do we know that's an

anomaly?

A.

Well, were looking for --

10

Q.

Tell me this --

11

A.

Do 1 geL to answer?

12
13

Q.
A.

Yeah .
We dre looking for the pattern in the spectral analysis

14

that relates Lo bicarbonate .

15

Q.

Where do we see that in this that shows --

16

A.

You see the result of it.

17

Q.

What's that?

18

A.

You see the end result of it .

19

Q.

How do T know that that was part of the spectral

20

analysis and was an anomaly detection from this document, or

21

are you reading from the book?

22

23

24

A.

I don't remember from the book. We put the

original -- what the original patterns looked like .

Q.

So how is the Court going to tell from -- without aid

CECIL FA V'
OJM r NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 3 of 87

of this exhibik, that there was a spectral analysis taken on

thls patlent 's b lood gas showng an anomaly of apparently a

bicarbonate 29 .12

MR . LOGAR ; Other than Lhe witness 's testimony?

THE COURT : M r . Logar, please .

6
'

If you have an

objection, direct it to rcte, would you, please.

W1l1 you?

MR . LOGAR :

THE COURT: A11 right. Mr. Peek, where are you going

I w 21l.

10

with this?

11
12

what was -MR . PEEK:

13

It's just more stuff --

14
15

Is your point that the stuff that was patented and

The copyright is noh anomaly detection .

THE COURT : I get it .


BY MR . PEEK :

16

Q.

Is there anything in there?

17

A.

The end result .

18

Q.

The end result . But we don 't know what the -- was the

19

original to be able to look at the spectral analysis, as you

20

described it, to say this <as a detection of an anomaly, other

21'

than your testimony?

22

A.

Correct .

23

Q.

And Lhere 's ncthing in the book that talks about that?

24

A.

1 111 look again .

>
CECILIA UOSZS NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 4 of 87

(
x.y
z

(...
.

Q.

Okay .
THE COURT :

Wli Le we 're taking thi.s little break,

according to my review o E the file, 1 do not have an Answer to

the complaint . Do you have a copy of the Answer?

5
6

MR. LOGAR J

Your Honorz did you not get the documents

that were filed in federa1 court Dn remittitur?

THE CO UR T :

MR . PEEK:

'
I'HE COURT : 091, ''on remittitur .'' Yeah , when they sent

10

''C?n rem ova l''?

''C)n rem iLtitur .''

them back?

11

MR . LOGAR :

Yes.

12

THE COURT :

Perhaps not, but do you have a copy of

13

the --

14

MR . LOGAR : We do .

15

MR . PEEK : And, Your Honor, they were filed and

16

captioned the United States District Court in the District of

17

Nevada.

18

THE COURT :

19

MR . PEEK :

20

MR . LOGAR :

Do you have a copy 1 could look at?

I've got oner Your Honor .


It was unclear, when we were in federal,

21

when the remittitur would occur.

22

been sent back by now .

1 assumed that the fike had

23

THE COURT:

It may have . Who knows.

24

MR . LOGAR : But you don 't have it?

CECILIA VOSL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 5 of 87

?y.. )
1

THE COURT : 1 dont have itz no .

MR . PEEK :

We a1l assume tha: because Judge McKibben

ordered it that way .

THE COURT: Let me just see a copy. A11 I?m saying,

Mr . Peek, is, 1 th jnk 1 know where you dre going with this . And

ultim atelyy if we don 't get finished: then 1fm going to have to

ultimately declare some kind of a recess, and God knows when

welre going to come back. So I encourage you to use your

Uim e --

10
11

12
13

MR . PEEK : Wisely?

Ifkl move onr Your Honor .

BY MR . PEEK :

Q.

ln the brief moment youfve had to look, you find

nothing in there about anomaly detection, do you?

14

A.

No .

15

Q.

And you were not the only founder of Computermate,

16

(m,

were you?

17

A.

Yes, I was the original founder.

18

Q.

Were you the only founder, sir?

19

A.

Yes: I was the original founder .

20

Q.

Were there any other individuals who -- wellz for

21

example, who is Robert West?

22

A.

I actually don 't remember .

23

Q.

And who is William Mannak?

24

A.

He joined Computermate -- I don't remember the exact

CECILIA VoHiz NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 6 of 87


(1pl
-'

date.

Q.

And was it in 1982?

A.

It was like a year after -- I1m just --

Q.

A year afher you had what?

A.

Started Computermate .

Q.

When did you start Computermate?

A.

I thought it was '81 .

Q.

So about a year laterz he joined you.

9
10

And the source code that you wrote for blood gas
analysis, that was written in what language?

11

A.

I believe RPN .

12

Q.

RPN . And in what language were you wrting anomaly

13

detection at eTreppid?

14

A.

The anomaly detection at eTreppid already existed .

15

Q.

It already existed?

16

A.

Yes .

17

Q.

Because you put it on the computers?

18

A.

Yes.

19

Q.

Okay . And what language <as 1t that you put it on?

20

A.

I think it was V isual C .

21

Q.

V isual C . Not C++?

22

A.

Not originallyz that's correct .

23

Q.

Now: were there engineers who wrote code onto the

24

anomaly detection that you had, at some timeg put on the

CECILIA VOIIL, NF CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 7 of 87


t. -..

(x.
M

servers at eTreppid?

A.

No .

Q.

So, there were no -- none of :he engineers in Zehang 's

group , as he is directcr of engineering, did any additions

whatsoever in writjng source code or writing code, either in

MET 1ab or C++ , to the anomaly detection ; is that right?

A.

To my anomaly detection?

Q.

That's right .

A.

No .

10

Q.

Was your anomaly detection on the source server?

11

A.

No .

12

Q.

Was it on the ESA server?

13

A.

No .

14

Q.

Was it in a raid box?

15

A.

Had it ever been on a raid box?

16

Q.

Uh-huh .

17

A.

Possibly .

18

Q.

Possibly . So -- and d1d you -- from time to times as

19

the government was asking you to make additions or deletions or

20

improvements to the -- as you call your source code, did you

21

have to write additional code?

22

A.

To the anomaly detectioh software?

23

Q.

Yes .

24

A.

No .

CECILIA VOSZP NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 8 of 87


(..- - )

1
2

Q.

(x-,
..J

Okay. And when did you put it on -- when did you put

the anomaly detecton software onto the computers at eTreppid?

A.

Which computers?

Q.

The computers at eTreppid .

A.

July or August of 2003, I believe.

Q.

And which computer -- on which computer did you put

it?

'

A.

The one in my office .

Q.

Okay . On this diagram here where we showed

10

Dennis Montgomery in sort of the lower right, is that where --

11

that 's your desk statjon?

12

A.

Where?

13

Q.

ls that your desk?

14

Show us -- actually: why don 't you

do it in green . Do it in green, pleasib sir.

15

A.

(Witness comp lles.)

16

Q.

So it 's not in the warehouse?

17

A.

Thats correct.

18

Q.

Okay . And do you have any other identfying

19

'characteristics of that, other than that computer that was in

20

your office?

21

A.

I don 't understand what you mean .

22

Q.

Is there anything, if 1 were to -- I want to make sure

23

that I could go to the right computer. Is there just one

24

computer in your office?


2l4

CECILIA VOS.
L, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 9 of 87

(X-y

j.
..n

A.

And what time frame was that?

Q.

Let s say in Deeember of 2005 .

A.

1 thought you said originally --

Q.

No, I wanted to know --

A.

You said originally 2003 .

Q.

You put it there. You put it there, in 2003, on your

computer in your office?

A.

That 's correct.

Q.

Did it go anyp'Lace after that?

10

A.

Yes.

11

Q.

Where did it go after that?

12

A.

Downstairs .

13

Q.

Thats into the warehouse area?

14

A.

Yes .

15

Q.

D1d you just take the entire box and put it -- take it

16

down to the warehouse, or did you just take portions of it?

17

A.

I made just a copy of it.

18

Q.

And did you leave the original on your desktop or your

19

computer in your office?

20

A.

No .

21

Q.

So you deleted that?

22

A.

Yes.

23

Q.

Okay . And then where did you put it after 2003, which

24

computer?
215

CECILIA VOSZ, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC
Document 644-22 Filed 05/28/08
Page 10 of 87
i
1
j...)

A.

(Witness draws on diagram .)

Q.

Is there any identifying characteristic o f that

computer, location, type: manufacturer'?

A.

Well, when I saw it last, it was still sitting there .

Q.

What 's the manu facturer of 1t?

A.

It was a clone . There was no manufacturer of it .

Q.

It was a clone built by --

A.

eTreppid .

Q.

eTreppid .

10

Is it the first computer as you walk into

the warehouse on the left-hand side?

11

A.

From which direction?

12

Q.

As you rre walking into it from the -- I don t know the

13

directions here, but from the offices into the warehouse: would

14

it be on the left-hand side?

15

A.

Yes .

16

Q.

That 's where it 's drawn on th is draw ing, isn lt it?

17

A.

Welly that drawing didn 't actually represent the way

18

19
.

kzy
'

the computers were set up in the warehouse .

Q.

20

Okay .

(Plaintiff's Exhibit 23 was marked for

21

identification .)

22

BY MR . PEEK :

23
24

Q.

Now , again with respect to Computerm ate, 1 think you

said that that company, at some timez went out of business?


216

CECIL?A VOSLZ NV CCA #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC
Document 644-22 Filed 05/28/08
Page 11 of 87
,
1
>-

V'
r;J

..

A.

I don 't remember if it did or not or we sold it .

Q.

And did it merge into Barrett Laboratories?

A.

I don ': think so .

Q.

And did Barrett Laboratories merge into 3Net?

A.

That is a possibility.

Q.

Let me hand you what has been marked as Exhibit 23 and

11m not certain .

ask you to tell me whether or not you can idenkify whether or

not that 's anything you have seen before today.

A.

1 can 't read a11 of them , but I think I get the gist .

10

Q.

The gist is, these are the original documents filed by

11

Computermate with the United states Copyright Officez are they

12

not?

13

A.

I don 't know if they are or not.

14

Q.

Well, you recognize your name there as

15

Dennis Montgomery, do you not, as the author?

16

A.

Yes .

17

Q.

You recognize the TXu as corresponding to the claim

18

19

20
21

that you made?

A.

I could look -- 1'11 trust you . Yes.

MR . PEEK : You recognize Mr. Mannak as being somebody


who was -- 1:11 offer itz then z Your Honor .

22

THE COURT : What's the number?

23

THE CLERK :

24

MR . PEEK :

23.

It 's 23 .
217

CECILIA VOHL, Nv ccA #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 12 of 87


t.- .)
k=-'

THE COURT: Any objectlon?

MR . FLYNN : He has no foundaton, Your Honor, for

3
4
5

authentication purposes.
THE COURT :
admit it .

1 Uhink it has enough that 1m going to

lt 's admitted .

(Plaintiff's Exhibit 23 was admitted into evidence .)

THE COURT : Where are we going with this? A re we back

8
9

10
11
12

to wKo really owned it?


M R . PEEK :

THE COURT :
to your clients?

Ye s, Your H ono r .

If he didn 't own itz how could he sell it

He shouldn 't even be here.

MR . PEEK ; That may very well be# Your Honor, as to

13

who should be here . What we maintain is, whatever he did w ith

14

blood gas has nothing to do with what happened -- or what was

15

actually developed at eTreppid .

16

THE COURT: Well, that, 1 understand.

17

MR . PEEK :

18

THE COURT:

19

MR . PEEK : I understand it may be that I'm dealing

There's two prongs.


Ownership has got a back side to it.

20

with Computermate or Barrett Laboratories or somebody else who

21

can come in and actually show us that their source code is the

22

same as ours and written in the same language.

23

MR . FLYNN : Your Honor, if that's the position r there

24

isn 't an iota of evidence so far that they have presented that
218

CECILIA VOSZ, M ? CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 13 of 87


EL-''#

$
:.
'
**.el

this anomaly detection software was developed, produced, worked

on, anythingr by eTrepp kd Technologies other than

Mr . Montgomery . A nd the only state of the record is it derives

from the copyrights .

'

Your Honor, that 's untrue . Mr . Zehang

testified that he did anomaly detections in MET lab --

THE COURT :

He did . He did .

MR . FLYNN :

Nop Your Honor -- well --

THE COURT :

Itls my recollection -- if I 'm wrong, 1

10

suspect that what 1'm going to do is, tIm going to want to hake

11

a look at the transcript. M aybe not . But m ade some notesr

12

and I can tell you thab, according to my notes -- hold on --

13

according to my notes, Dr . Gun -- well, I don 't see it right

14

here, but that was my recollection .

15

notes .

1'11 look back at my

I1m not going to take the time --

16

MR . FLYNN :

17

THE COURT : Hold on right here.

18

Dr . Gun, acco rding to m y notes, h e created so ftw are

19

for p attern recognition, motion detectionz face recognition,

20

tracking the vehicles, and anomaly detection .

21

MR . PEEK :

There is nothing to the contrary.

MR . FLYNN :

Your Honor, I specifically asked --

I wrote it down .

Yes, Your Honor . And then on cross, I

22

asked him if the anomaly detection work that he did had

23

anything to do with the anomaly detection work that

24

M r. Montgomery did on the government contracts, and he said no .


2l9

CECILIA VOSES NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC
Document 644-22 Filed 05/28/08 Page 14 of 87
'
;
j.p..j
(
..yy'
m.
..

And I asked M r. Montgomery, and he said what Dr. Sun did had

noth ing to do with what he did on the government contract .

3
4

THE COURT : That could be . A 11 right. Let 's go ahead


and try to get through this .

MR . PEEK :

on .

BY M R . PEEK :

8
9

Q.

Thank you: Your Honor.

1'11 try to move

You then went to -- I think you said Barrett did

addltional work -- wellr first of allz let me sort of

10

backtrack.

Is there a written assignment to you from

11

Computermate of these copyrights?

12

A.

Yes .

13

Q.

Where is that?

14

A.

1 believe I have it.

15

Q.

Okay . So you could produce it to this Court at our

16

next hearing or durinq discovery?

17

A.

I will surely look for it.

18

Q.

Okay. And would that be -- would Mt . Mannak be the

19

one who assigned it?

20

A.

I don 't recall if it was or not.

21

Q.

And where do you believe it exists today?

23

A.

I don 't know .

24

Q.

Now , you said you went to Barrett Laboratories. Did

22

Where is

it?
I'd have to look for it .

22 0

CECILIA VOAZZ NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 15 of 87


. yf'

x.-.. -

you, then, convey this same anomaly -- what you claim to be

your anomaly detection technology -- orr excuse mey copyright

to Barrett?

A.

I don 't know if'


. it was -- I believe it was a

derivative and that work had continued on .

Q.

at Ba rret h?

A.

Yes .

Q.

And you had additional copyrights?

10

A.

Yes .

11

Q.

And those copies also were fo r this same derivative

12

Okay. And so you did additional work whtle you were

work or blood gas analyais?

13

A.

No, it covered many other areas.

14

Q.

Covered other areas, but it was also anomaly

15

detection?

16

A.

Yes .

17

0.

And did -- soz is there a written transfer of that --

18

a11 that work, the copyright for blood gas analysis, to

19

Barrett?

20

A.

I believe so .

21

Q.

You would have that as well?

22

A.

I will sure look for it.

23

Q.

And so then Barrett owned it after you joined Barrett

24

sometime in '85f you said?


221

CECILLA Uoffiz NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 16 of 87


$
'x-

I believe 1 retained the rights out of Computermate to

do with it what I chose, whether Barrett had it or noh .

Q.

Wellz the copyrights that you did -- that you actually

copyrighted at Barretto were they for the blood gas analysis or

derlvahives thereof?

A.

Would it contai.n that?

Q.

Okay . So the (ropyr tghts that you did while you were

'

A.

Yes.

at Barrett, who owns those?

A.

I do .

10

Q.

And how did you get them from Barrett?

11

They were assigned to me.

12

Q.

And is there another wrltten assignment of that?

13

A.

I believe there is .

14

Q.

You believe there is.

15
16

Now , are you aware that in order to make an assignment


e ffective, it has to be at the copyright office?

17

A.

I don 't recall kf it was or not .

18

Q.

Have you transmitted these assignments to the

19
20

21
22

23

24

copyright office?
A.

I don 't recall.

MR . FLYNN : Your Honor, that calls for a legal


conclusion .

THE COURT : Well, he's asking if he 's transmitted it

to the copyright office . Are you talking about the question


222

CECILIA VOfrZ, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 17 of 87


..+ .

'

before that?

MR . FLYNN :

g'm asking him if he is aware that that's

what has to be done to make tt legally effective .

THE COURT: And he said no, he's not, so he 's answered

that question . And then you asked himz had he transferred it#

and I would assume --

MR . PEEK :

Transmitted it in an assignment form to the

copyright o ffice .

THE COURT I

Yeah, yeah .

10

no, because he didn 't know --

11

THE WITNESS :

12

THE COURT :

13

don 't know .

14

BY M R . PE EK :

15

Q.

I would assume the answer is

E don lh know .

-- if that is the law or isn 't the law .

Would you agree w ith me# though, the copyrights, while

16

you were at Barrett, on whatever you claim to be an anomaly

17

detection that you devetoped at Barrett, were in the name of

18

Barrett?

19

A.

I don 't recall if they were or not .

20

Q.

Did the copyrights that you undertook to copyright

21

while at Barrett get copyrighted in the name of Barrett or in

22

you r nam e ?

23

A.

T believe Barrett.

24

Q.

And Barrett still exists in some other iteration of an


223

CECILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 18 of 87


>*

=-<

entity todayr does it not?

A.

I don 't know if it does or not .

Q.

You left it after a certain t tme?

A.

Y es .

Q.

Now, I think you also say that your -- you claim to

have the right to the source code for pattern recognition z as

well; is that correct?

A.

Yes .

Q.

Someth ing that you developed while you were in

10

Hollywood, acting as a consultant?

11

A.

No .

12

Q.

Okay . From '93 to '98 you worked as an consultant,

13

and you said during that period of time, you did some work in

14

Hollywood .

15

A.

Yes .

16

Q.

And it 's while -- it's while doing that work in

17

Hollywood that you then wrote pattern recognition source code?

18

A.

No.

19

Q.

When did you write that?

20

A.

That was derivative work from the original work that 1

21

22

h ad done on the copyrights.

Q.

23
24

Okay . Same th ing with the blood gas analysis?

MR. FLYNN: Objection. I don't understand.


////

////
224

CECILIA Moffz, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 19 of 87

2
3

BY MR . PEEK :

Q.

What copyright was it that covered pattern

recognition? Was it the b lood gas analysis one?

A.

I believe it was the one in Barrett Laboratories.

Q.

And uhat 's the name of it?

A.

I -- 1 think j.t was the one for microbiology .

Q.

The one for microbiology?

8
9
10

11

Okay .

(Plaintifrs Exhibit 24 was marked for


identification .)
BY MR . PEEK :

Q.

Let me have you take a look aty again, a document from

12

the United Statea Copyright Office.

13

Court and counsel that ls where this came from .

14

It 's Exhibit 24?

15

THE CLERK : Thatls correct .

16

17

1'11 represent to the

BY MR . PEEK :

0.

Let me switch with you and give you the -- these

18

are -- I <ll represent to your these are the copyright numbers

19

for the copyriqhts whose numbers correspond to the allegations

20

in your counterclain and in your federal court complaint.

21

A.

Okay .

22

Q.

Can you tell me which of these relate to pattern

23

24

'

recognltionz if any?

A.

T did pattern recognition orlginally in the original


225

CECILTA Voflfz NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filedi 05/28/08 Page 20 of 87

HP computers.

Barrett Laboratories.

Q.

It was expanded greatly when T got into the

Okay.

Then let's gc back -- you still have the

Computermate . Which one of those is related to pattern

recognition?

6
7

8
9
10

A.

The one dated -- the one -- 117-868, titled

''Evapotransp iration Software.''

Q.

And this is ent.itled -- and you say 'fcomputermate

Source Code for Hewlett-paekard Model 86z Evapotransp iration


Irrigahion Softwaren; is; that correct?

11

A.

Y es .

12

Q.

And the Hewlett:-packard Model 86# was that a computers

13

or was that one of those hand-held --

14

A.

No .

15

Q.

What was it?

16

A.

I believe they were a1l computersw the 85z 86r and 87 .

17

Q.

They were before the IBM XTs?

18

A.

PCs .

19

Q.

The XTs that ran on the 88 -- or 8800 chip ?

20

A.

Yes .

21

Q.

And you believe that th is is an HP computer, the 86?

22

A.

I believe it's a computer, yes .

23

Q.

And certainly not what we know today or even

24

comparable to the IBM that started a11 this, with the 8800 chip
226

'

CECILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 21 of 87


-- 2

x.e

back in the mid-d8()s?

A.

Are you askinq me --

Q.

Tbat's not the same tbingz is it?

A.

What do you meiln: ''the same thinge'?

Q.

Well, it's not with the motherboardy the hard drives,

the chip?

A.

It had a motherboard and a hard drive and a chip .

Q.

And in what language did you write this code?

A.

I think it was RPN . I'm not certain .

10

Q.

You bre not certain . Okay .

11

So then we have the blood gas analysis for anomaly

12

detection and the Evapotranspiration Irrigation for pattern

13

recognition; is that correct?

14

A.

Yes.

15

Q.

So the so-called copyrights at Barrett had nothing to

16

do with either anomaly detection or pattern recognition; is

17

that correct?

18

A.

No .

19

Q.

Okay . So which of those relates -- of the Barrett

20

relate to pattern detection and anomaly detection -- pattern

21

recognition and anomaly detection?

22

23
24

I 'm trying, Your Honor .

A.

The one that ends in 750 that speaks of microb iology

and the one that ends n 009 that relates to anatomic


227

CECILIA VOHLr NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 22 of 87


J

pathology .

Q.

code would look like at the copyright office, and do you have

an original copy of your filing showing the source code that

you copyrighted?

A.

copyright .

Q.

I believe the source code is included with the

Sor at least those two anomaly detection copyrights

that were in some -- excuse me . The anomaly and the pattern

10

recognition were transferred to Barrett, and you continued to

11

work on them and devetoped additional -- well, developed more

12

work in pattern recognition and anomaly detection at Barrett;

13

is that correct?

14

A.

Yes .

15

Q.

And is the pattern recognition source eode -- was it

16

'

Have you -- is there some record of what this source

also located first -- or loaded first on your office computer?

17

A.

Um , I'm not certain .

18

Q.

And when did you load it on that office -- your

19

computer at the eTreppid office?

20

A.

03, I believe .

21

Q.

What month in $032

22

A.

I'm thinking sometime in August, July, August.

23

Q.

July and August of :03.

24

A.

I'm tired . I think that was Lhe tlme fram e.


228

CECILIA Voffzz NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 23 of 87

Q.

Okay . And then did you, after July, August o f 103,

write any additional source coder lines of code, to add to that

original source code of pattern recognltion that you loaded on

your office computer jn July and August?

A.

For the detection?

Q.

Yes.

A.

No .

Q.

And a1l your techs wrote pattern recognition . Did you

write any code on that'


?

10

A.

For Lhe actual detection?

11

Q.

The pattern recognition that you say is yours and the

12

anomaly detection which you say ls yours -- now r am I getting

13

the phrases wrong?

14

A.

What you 're asking is, has the technology thats

15

detecting the pattern or the anomaly been changed since it was

16

at eTreppid?

I think -- is that --

17

Q.

Yes .

18

A.

No .

19

Q.

Thank you . 5o you haven 't written any additional

20

code, is that correct, to that?

21

A.

For the actual detection?

22

Q.

That 's correct .

23

A.

No .

24

Q.

And are you telling this Court that the only software
229

CECILIA VOSL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filedi 05/28/08 Page 24 of 87

which was used to complete the government contracts was your

anomaly detection atnd your pattern recognition software?

A.

I'm just looklng at something.

Q.

Please answer my question, sir.

A.

lem sorry . Go ahead .

Q.

A re you telling this Court that the contracts that

were fulfilled by eTreppid were done -- were fulfilled solely

by your pattern recognition and your anomaly detection

software?

10

MR . FLYNN : Objection . Which contracts, Your Honor?

11

MR . PEEK : N 1y of the contracts.

12

THE COURT : Any of the contracts.

13

THE WITNESS ; You mean ever?

14

15
16

BY MR . PEEK :

Q.

Yesr solely by your source code for anomaly deteetion

and pattern recognition.

17

A.

Yes .

18

Q.

Okay. And which contract -- tell this Court which

19

contract was fulfilled using just your anomaly detection and

20

your pattern reeognition .

21

A.

The government agency that we --

22

Q.

Oh: the government agency that we don 't want to talk

23
24

about, is that the only one?


A.

No .
230

CECILIA IJIISJ;, NV CCR #246 (775) 82 7-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filedi 05/28/08 Page 25 of 87

1
2

Q.

Okay . Whieh other one where it was the sole produet

or sole source code software used to fu Lfill the contract?

A.

We had a conhraet with the Department of the Navy .

Q.

Okay . And what was the nature of that contract?

A.

Searching for an anomaly.

Q.

Searching for an anomaly.

And was your software the only software used?

A.

The one for detection?

Q.

To Culfill that contract .

10

A.

Y es .

11

Q.

So none of the other eTreppid softwares were used

12

whatsoever?

13

A.

Thats correct .

14

Q.

And did you tell this unnamed agency that lt was

15

only -- that it was your software that was being usedz as

16

opposed to eTreppd ?s?

17

A.

I don't recall if 1 did or not .

18

Q.

Was the contract with this unknown agency between you

19

or between eTreppid and the others?

20

A.

eTreppid .

21

Q.

Was the work runninq the software for detection

22

undertaken while you were at eTrepp id?

23

A.

Yes .

24

Q.

And Was the contract with the Navy, the contract with
231

CBCILTA VOHLr NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 26 of 87


:

eTrepp id?

A.

Yes .

Q.

And was it a ccntract and the work undertaken on that

contract a11 performed at eTreppid?

MR. FLYNN: Objection. Lacks foundation.

THE W ITNESS ; You have to ask the question again .

THE COURT : Ask the question . I mean, I understand

the question .

BY MR . PEEK :

10
11

Q.

Was the performance under the contract with the Navy

a11 undertaken by eTreppid on eTreppid premises?

12

A.

Yes .

13

Q.

Now , is pattern recognition a part of digital

14
15

compression product?
A.

16

No .

(Plaintiff's Exhibit 25 was marked for

17

identification .)

18

BY M R . PEEK :

19
20

Q.

Did you, from time to timez prepare Powerpoint

presentation s?

21

A.

Yes.

22

Q.

Let me have you take a look at what has been m arked as

23

Exhibit 25 and ask you to take a moment and examine it and tell

24

me whetherr after doing so, you can identify it as something


232

CECILIA VOSL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 27 of 87


wm. ?

you eve seen before today.

THE CLERK : J!1st for the recordz Your Honor,

Exhibit 24 was not offered.

MR . PEEK:

Thank youz Mr. Clerk.

MR. FLYNN: No objection.

THE COURT : It 's ae itted .

This is 25?

MR . PREK :

I'k1 orfer Exhibit 24.

Yes, Your Honor .

10

(Plaintifr's Rxhibit 24 was adm itted into evidence .)

11

THE WITNESS : Okay.

12

'

.-.<

Irve looked at it .

BY MR . PEEK :

13

Q.

And did you prepare it?

14

A.

No .

15

Q.

Who prepared this?

16

A.

I don 't know .

17

Q.

Have you seen it before?

18

A.

It looks familiar.

19

Q.

So whoy in March of 2001, would have been preparing a

20

Powerpoint presentation?

21

A.

I can't recall.

22

Q.

But you say this was not prepared by you?

23

A.

I don 't -- you asked me if I recall preparing it .

24

Q.

Was it prepared be you?


233

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.

A.

1 don ft recall preparing it.

Q.

Okay. But you prepared Powerpoint presentations very

similar to Lhiss did you not, sir?

A.

1 prepareci Powerpoint presentations .

Q.

And do you know ITvimage Xpress?

A.

I th knk it was the name that the company was coming up

8
9

with to name their products.

Q.

But you 're the chief technology officer at this time,

w ere you no t?

10

A.

Yes .

11

Q.

And it was your data compression that the company was

12

using pursuant to vour contribution: was it not?

13

A.

Y es .

14

Q.

Okay . And you would have known what the business --

15

the technology business of the company was, would you not?

16

A.

Yes .

17

Q.

So you would have known about ITvdata Xpress, would

18

you not?

19

A.

I don t recall seeing that particu lar --

20

Q.

Okay . Well, ket me --

21

A.

-- acronym .

22

Q.

Let me have you -- let 's see. One: two -- these are

23

not numbered -- two, three, four, five, six -- on page 7 of

24

this -234

CECILIA MOSLp NV CCR #246 (775) 827-0672

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A.

What is --

Q.

The seventh page in.

A.

What does it start wi/h?

Q.

lt starts with ''TTvdata Xpress; ITvdataz' and it says

''supports SAN-solutions based systems.''

A.

Okay.

Q.

Okay . Th ts is talking about digital compression

1 can 't tell you .

products, is it not?

A.

Ye s .

10

Q.

And it's talking, on at least that seventh page, about

11
12

pattern-matching features, is it not?


A.

13
14

f don /t see that .


THE COURT : Third down .

BY MR . PEEK :

15

Q.

Third one down .

16

A.

I must be on the wrong page, then .

17

MR . FLYNN :

18

THE W ITNESS :

19

MR . PEEK :

20

THE W ITNESS : Okay . 1 got it . What's your question?

21

Its page 8.
I was on the sixth page .

Is it page 8, Counsel?

BY MR . PEEK :

22

Q.

Pattern-matching features, that's pattern recoqnition ,

23

is it not?

24

A.

No.
235

CECIL TA t'off.
bs NV CCR #246 (775) 827-067.2

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.
'

qmee

Q.

!
'

--

It's not. Okay .


Now , 7 -- go t.o 8, 9, and then page 10 .

A.

Got it.

Q.

Now , does it say there ''lTvvideo has advanced features

like pattern and bj.t recognition''?

A.

Yes .

Q.

5o eTreppid o; technology: as of March 29, 2001, under

digital compression products, was at least saying that it had

pattern and bit recognttion as far as digital compression r did

10

it not?

11

A.

I see that there .

12

Q.

And do you have any reason to --

13

A.

I'm sorry .

14

Q.

You don 't agree with that, though: I would take it?

15

A.

I don 't recall at that time if it did or not.

16

Q.

Wells you said you didn 't put it on your computer

17

until sometime in 2003.

This is 2001.

18

A.

What ls the question?

19

Q.

So: the pattern recognition addreased here came out of

20

the digital compression productx did it not?

21

A.

No.

22

Q.

Oh, it did not. Okay.

23

24

But at least it was represented or part of this

Powerpoint presentation as a product that eTreppid had in March


236

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..

of 2001?

A.

I don rt recal L if it did or not.

Q.

Well, you see j.t here, do you not?

A.

1 just said 1 didnbt make this document.

Q.

I understand that . You don 't have any reason to

6
7

believe that this fs not a true and correct -A.

I don 't know if. it was true or incorrect .


MR . FLYNN :

Your Honor, we need a correction on the

record. Mr . Peek pointed towards the green box and said that

10

what he ls now discussing was put on Mr. Montgom erybs computer

11

back at the time.

12

box with regard to anomaly detection?

The question was with regard to the green

13

THE COURT :

14

MR . PEEK :

i l:hink it was . I think it was.


He also said, Your Honorr that he put his

15

pattern recognition on the same computer on the same tim e frame

16

in 2003 . Il1 go back.

17

18

THE COURT :

him .

21
22

Why don 't you ask

I really don t remember.

19
20

1 don 't remember that.

MR . PEEK :

I understandr Your Honor .

Its late.

BY MR . PEEK :

Q.

When did you put the pattern recognition source code

onto your computer?

23

A.

T don 't recall the exact tim e frame .

I 'm tired.

24

Q.

Would it have been similar to the tim e you put the


237

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.

.. ., I

anomaly on?

A.

lt could have been .

Q.

Would ik have been any earlier than that?

A.

1 don 't think so .

Q.

Okay . So whenever you put -- whenever you testified

you puL the anomaly detection on would have been about the same

time you put the pattern recognition source code technology on,

again , in that little otfice, in that green block on Exhibit 1?

A.

I'm not certain .

10

THE COURT : How much longer, Mr. Peek, do you think?

11

MR . PEEK :

12

THE COURT : 1 know, but 1'd like to have some idea how

13

much longer.

14
15

HR . PEEK :

I'1L try to finish up, Your Honor, in a

half an bour.

16
17

1911 try to move this along: Your Honor .

THE COURT: Then there's going to be redirect: I would


assum e?

18

MR . FLYNN :

Yes, Your Honor.

19

THE COURT: So ee ere looking at 10 o 'clock, maybe?

20

It's getting kind of late. Let me just interrupt here because

21

I want to ask a question , because I don't want to be sitting

22

here, spending a11 this time and energy on this case -- wexre

23

looking at a case that actually is preempted by federal law .

24

And wh at T'm trying to understand -- I haven 't seen the order


238

CECILIA Voffzz NV CCR #246 (775) 827-0672

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i

.'

'

. .

of remand . It 's not in my fle, anyway. And was hhis issue

presented to u'fudge McKibhen, and did Judge McKibben -- why did

Judge McKibben send tt back to state court if, in fact, it was

preempted?

5
6
7

8
9

MR . PEEK : That was the argument thah was made by


Mr . Logarz Your Honor.
MR . FLYNN :

T wasn t there . Mr. Logar will have to

address it .
THE COURT : l direcked the question to them , so 1et

10

him answer itz and you can reply to it if you want to .

11

But do you have the order of remand?

12

THE CLERK : I don 't have it .

13

THE COURT : A1t right. Mr . Logar?

14

MR . LOGAR : %he case was originally filed by the

15

plaintiffs in state court . We did a removal based on two

16

issues : One was the diversity of citizenship parties, and

17

subject matter jurisdiction. The federal court found that

18

neither applied and remanded it back to the state court .

19

I don 't.

THE COURT : Well, are you telling me that McKibb en

20

found that the subjeet matter, i.e ., the issue of copyright,

21

was not preempted?

22

MR . LOGAR : No .

23

MR . PEEK : That 's exactly what he found .

24

MR . LOGAR : N(b that is not What he found .


239

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MR . PEEK :

MR . LOGAR : He followed the well-crafted complaint

3
4

Your Honor --

rule, okay?
MR . FLYNN ; Your Honor, the issue that arose over in

federal court was real simple. When they puL in their original

complaint Lhat eTreppid Technologies was the California corp .,

we removed it on that basis that they pled it was a California

corp . They didn't reatze they made a mistake . They told

Judge McKibben we made a mlstake, it ls not a California corp w

10

it's a Nevada corp . Judge McKkbben said 1 have no choicer

11

there ls no diversity .

12

In the interim r we filed a copyright claim --

13

counterclaim . So the issue of preemptkon or nonpreemption has

14

never been brought up or discussed or declded upon over in the

15

federal court.

16

MR . PEEK ;

Your Honors I was there --

17

THE COURT : Hold on . What I want to know is -- I

18

mean, you know, I enjoy thts job . I get paid to do thia job .

19

But on the other hand, it troubles me that this issue that

20

where you 're coming here and telling me : on February the 7th,

21

that a11 of this stuff is preempted, that the flrst time T hear

22

about that is when I 'm handed this brief this evening .

23

think that 's a very diplomatic way to handle this issue with

24

th is Court.
240

CECILIA VOHL, NV CCR #246 /775) 827-0672

I don ft

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 35 of 87

MR . FLYNN : Your Honor, I agree with the Court.

THE COURT :

I ltean r we have -- if you are correct, if

you are correct -- and 1 thnk the issue that really is whether

or not the material we're talking about was copyrighted back in

the e80s sometime. RtH: if youdre correct, then weeve just

wasted a whole 1ot of ti.me, and frankly, I would think that if

that was your position from way back when, 1 would have heard

about this before now .

MR . FLYNN : Your Honorr Mr. Logar and Mr . Pulver are

10

not copyright lawyers. We were just brought in. We only filed

11

our appearancesy Your Honor . You knowy we had to do all of

12

that by Federal Express . We literally have been doing this

13

research in the last aeveral days. Webve been brought in at

14

the 11th bour. An enormous amount of material is being dumped

15

in the Court's lap , and it is --

16

MR . PEEK : Your Honor, could 1 address this?

17

THE COURT : You can if you want .

I mean, I've already

18

pretty much decided that what I'm going to do is, I!m goinq to

19

go ahead and finish this matter. And Im going to hear this

20

m atter and 1m going to make a decision in this matter, and

21

then if the federal court says I1n preempted, that's fine .

22
23

24

MR . PEEK : 1 could address why they did what they did ,


but 1 won bt .

THE COURT:

TL' doesn 't matter .


241

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(. -,

... '

MR . PZEK ; Okay . Thank you .

THE COURT REPORTER: Your Honor, 1 just want to say,

for khe record, T cannot go to 10 o'clock. Sorry .

THE COURT : You can 't or you won lt?

THE COURT REPOBTER ; I cannot .

THE COURT : How much longer do you Lhink you can go?

1 mean, if webre not going to go to the end , we might as well

stop right now .

THE COURT REPORTER : I'm very sorry, but the record

10

w1l1 suffer, and we 've got a criminal calendar, as you know, at

11

8 :3 0 .

12
13

THE COURT:

1 15ort of think I have to be here for

that: don 't 1?

14

THE COURT REPORTER :

15

MR . PEEK :

Yes, Your Honor .

Your Honor, could I a5k Ms . Vohl to indulge

16

us just for a few more queations, because I want to make sure

17

that, one, the order that 's currently there remains.

18

think the Court will do that . But 1 also want to ask for some

19

exp ansion of that . But may I have th e Court's indulgence?

20
21
22

And I

MR . FLYNN : I 'm going Lo need to be heard on that,


Your Honor .
THE COURT : Well, T means we got a situation where

23

webve got a court reporter thats telling us she can lt really

24

go much further.

You know' there 's not much -- I can 't get out
242

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.w..
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. .:
1

my whip and make her do that.

THK COURT RKPORTER ; You have a Whip?

THE COURT :

MR . PEEK : Thanks, Cecilia.

MR . FLYNN : You seem way too kind, Judge .

MR. PEEK: 1 would just sk some indulgence, Your

Honor , for fkv: minutes .

THE COURT : Can you hang in there for five?

THE COURT REPORTER :

10
11

12

Yes.

THE COURT : A L) right .

Let 's go flve-

BY MR . PEE K :

Q-

M r. Montgomeryv you've heard Sloan bs testimony about

13

conversations he had with you on January 3rd about why does it

14

appear that there are operations on the source server and the

15

ESA server, and you said he was cleaning up files.

16

A.

I heard hiG testimony.

17

Q.

Did you have that conversation with him?

18

A.

No .

19

Q.

That never oceurred?

20

A.

That's correct .

21

Q.

So you were never cleaning up files on either the

22
'

Yeah, I do .

SA

source server or the ESA server?

23

A.

Ever?

24

Q.

In this time frame, from December through January -243

CECILIA MOSS, NV CCR #246 (775) 827-0672

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.

A.

I might have.

Q.

-- of 605.

So you might have cleaned them up?

A.

Yeah .

Q.

So when Mr. Venable was askinq you questions about

6
7
8
9
10

what you were doing, you said you were cleaning up files .
A.

No, no, I've never had a conversation with M r. Venable

regarding this.
Q.

And then you read the affidavit of Mr . Balls have you

not?

11

A.

Yes.

12

Q.

And Mr . Ball talks about the fact that you took his

13

hard drive and his workstation on or around December 19th or

14

20th ?

15

A.

You fd have to show it to me .

16

Q.

Wellz 1et me Just ask this question : Did you, on or

17

around December 19:h or 20tb , begin deleting certain eTreppid

18

source code files located on Barjinder Ball's hard drive?

19

A.

No .

20

Q.

Did you tell Barjinder Ball that you were deleting the

21

files on your -- his workstation for security reasons?

22

A.

No .

23

Q.

And did you tell Barjinder Ball that there remained

21

cop ies of those files that you were deleting on h1s server -244

CECILIA Molff, NV CCR #246 (775) 827-0672

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I

or, excuse me, on his hard drive, on the source server, Lhat he

would still be able to access?

A.

He has a direct connection to the source server.

Q.

Did you tell him that, sir --

A.

No .

Q.

-- that you were deletinq files, that he could have

copies from the source server?

A.

No .

Q.

Okay. Did you delete any eTreppid source code files

10

on Venkata Kalluri's workstation tn or about December of 2005?

11

A.

No .

12

Q.

Did you have a conversation with M r. Kalluri about the

13

fact -- in December of 2005, about the fact that source codes

14

on his workstation had been deleted?

15

A.

No .

16

Q.

Did Mr . Kalluri ever ask you or did you ever explain

17

to M r . Kalluri that you were backinq up the source code at

18

eTreppid in or about late December of 20052

19

A.

I don lt believe so .

20

Q.

Well, did you or did you notz or you Just don't

21

believe you did?

22

A.

No: I didn bt.

23

Q.

Now , during the period of time between Christmas and

24

New Year's, if Mr . Kalluri needed an eTreppid source code filez


245

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J'..
.

that he would request it from you and then you would make a

copy of it?

A.

Noh Lhat J recall.

Q.

So i.t could have happened?

A.

He didn 't make a request of me . No .

Q.

So a11 of these lndividuals who gave affidavitsz and

M r. Zehang who testified and Mr . Venab le who testified , are

lying about the fact that you deleted source code off of their

workstations and off of the source server?

10

MR. FLYNN ; Objection, Your Honor.

11

THE COURT : Thatls argumentative. That 's right out of

12

Law & Order .

13
14

MR. FLYNN: At that pointy 1 think an objection would


be best .

15
16

MR. PEER; That objection, Your Honors is that out oc


Law & Order ?

17
18

'

THE COURT : No, the question is, the one where the
guy -- I can 't think of h1s name -- he asks that a1l the time .

19

MR . PEEK :

Jack .

20

THE COURT : A11 riqht. Welre -- that was --

21

MR. PEEK : That was the end of my five minutes.

22

have more questions, Your Honor. Let me ask one more .

23

BY MR . PEEK :

24

Q.

I
.

If the Court were to reconvene wiLh you at eTreppid 's


246

CECILIA VOHL, NV CCR #246 (775) 827-0672

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z .1

u.u.5j

offices, would you be ab le to then show the Court and everybody

else where a1l this code is that eTreppid says has been

deleted?

4
5

MR. FLYNN : Objection. Your Honor, the Court cannot


order that.

MR . PEEK :

THE COURT :

T think the Court can order that .

I donft know if I could order that we

convene there, but 1 m kght be ab le to order that -- something

that would accomplish the same result . I 'm not sure.

10

MR. FLYNN ; Objection. J do not believe, under the

11

13th Amendment, since this person has been fired, you ean make

12

him go back and do anything .

13

MR . PEEK :

14

THE COURT: We dll see, when that day comes' whether I

The Court can convene and show us where --

15

can or not.

16

But I think I can order him to produce information that he may

17

have: and whether that is easier accomplished in another forumz

18

wefll just see, because I don't know the answer to that. And

19

so the questlon was that if that were a possib ility: could you

20

do that?

21

BY MR . PEEK :

22

Q.

I don lt know, franklyz if I can or if I can rt .

Could you do that?

23

THE COURT: And 1111 let him answer that question .

24

THE WITNESS: It might be possib le, but considering


247

CECILIA Vosfr NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed


05/28/08 Page 42 of 87
f
.

/,

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>

the fact that they took all the drives out of the machines and

moved them around, 1 would have no idea.

MR. PEEK :

Your Honor, f still have the time tbat I

said T would take on cross in terms of things like promissory

notes and dilutions and the ltke, but 1111 reserve that for

another day .

THE COURT :

1 think what weAre going to have to do,

Counsel , is you 're gong to have to speak with Sheila, my

adm inistrative assistantz and set this mahter for the first

10

earliest time that we lave availabler which I don 't really know

11

myselfy because I don 't keep my own calendar, what that is .

12

T've got a hearing that's similar to this on Thursday and

13

Friday involving similar kssues that 1 can 't bump . Tomorrowr I

14

have a criminal calendar in the morning , and I have a scheduled

15

a1l afternoon tomorrow, don 't I -- yeah, I 'm told that I have a

16

week-long jury trial on Monday. Is that right?

17

THE CLERK :

18

They sald three or four days.

19

: believe -- I spoke with t& e attorneys .

THE COURT : A l right. Wellz the only thing I can say

20

is the best thing to do is to talk to Sheila bright and early

21

in the mornng and find out what we lve got available . 1 '11

22

give you my earliest available time .

23

24

MR . PEEK : Can 1 tell the Court T have a horse show

with my daughter that Ifm attending on the 16th. 1 would ask


248

CECILIA VO/Ze NV CCR #246 (775) 627-0672

Case 3:06-cv-00056-PMP-VPC
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05/28/08 Page 43 of 87
f.. k
k

the Court not to order me to continue this and m iss my

daughterls horse show .

THE COURT : WC?LL, alL I 'm saying is, you lre the people

that want this thtnq done expeditiously . And 11m aaying f'm

willing to accommodate that, and I'm wilYing -- you know , in

consideratkon of other counsel 's calendars, as well, f'm

willing to schedule it after hours.

it --

9
10

Iem w illing to schedule

MR . PERK : This Saturday?


THE COURT : This Saturday?

I got my kids, but I could

11

work around that if everybody else can work around 1t.

12

the problem . And that xncludes staffr and it includes the

13

court reporter . ft includes a11 of the attorneys --

14
15

16

That brl

MR . PKEK: Could we qo off the recordr Your Honor, for


M s. Vohl, to have thls discussion, or not?

THE COURT : Well, al1 right. Let's do this . Letls go

17

ahead -- we lll be in the recesa now until this hearing

18

reconvenes .

19

MR . PEEK : The order is contknued?

20

THE COURT ;

It is continued until such time as we can

21
22

reset it.
And, Cecilias you can go off the record right now ,

23

unless counsel wants to put someth ing on record, and we can

24

talk about schedultng and that sort of stu ff.


249

CECILIA ;/S, NV CCR #246 (775) 827-0672

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t'
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q
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1

MR . FLYNN :

1 hate to impose on the court reporter:

but T have an argumenh a:s to why the order cannot continue .

lt 's not leqally possible for this Court --

THE COURT :

T haven 't even gotten to that.

MR . FLYNN : -- to continue the current TRO .

THE COURT : Because of the 15 days?

MR . FLYNN : Because of the 15 daysr because there ia

no record that has been created where a burden of proof has

been met under a11 of the elements to sustain a temporary

10

restraining order . There isn 't even close to a record , as the

11

original judge found, that would warrant the kind of language

12

prepared by Counsel that is in the existing order .

13

Perhaps, Your Honor, there is some type of an order

14

about data compression technology, but the Court, under the

15

current state of the record, cannot possibly fashion an order

16

on anomaly detection when tbere is absolutely no testimony that

IR

they even own it, 1et alone irreparable harm .

18

THE COURT : You said a couple of th ngs . T don 't

19

think he was talking about the oriqinal ludge. I talked to the

20

original judge. He said, ''1 didn't decide anything.'' He said:

21

''I just decided T wasn't going to hear it. I'm going to send

22

it to som ebody else .'' And he decided nothing on the merits . I

23

talked to him today at noon .

24

MR . FLYNN : Your Honor, there is absolutely no showing


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t.

in the record of irreparable harn . There's -- the worst that

cou ld possibly happen if this order were vacated, under the

worst-case scenarloz is Lhat Mr. Montgomery would m ake a deal

w ith the government or somebody, money would be created, and

theyld have a claim for money .

Sor how could equity and relief for irreparable harm on this

record possibly exist?

That 's the worst-case scenario .

THE COURT : A re you asking me a question?

MR . FLYNN : Your Honor, 1'm saying that there is

10

simply no record here . The Court cannoty on hhis record: issue

11

a temporary restraim inq order for anomaly detection software

12

that these lawyers incorporated into the order thah this Court

13

has signed, let alone the issue of restraining h im from talking

14

to anyone, talking to the Un ited state:s Government: talking to

15

the individuals he regularly communicates with on this sublect.

16

He communicated with one of them today.

17
18

19

MR . PEEK : Thats in violation of the order: Your


Honor.

MR . FLYNN : Your Honor specifically asked us, if the

20

government comes in here and asserts the privilege, so We

21

immediately called an individual who basically said on the

22

telephone today, he 'll have an attorney in this courtroom . Soz

23

whether it's a violation of the order --

24

THE COURT : I don 't see the -- 1.11 also share with
251

CECILIA Moffls NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 46 of 87

y...
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',- .

youw I talked with the United states Attorney today . And 1 was

told that they would get back to me, they hatAl't heard a word

about it, don 't know anything about it, didn lt seem to be

concerned about it.

had . And like I'vf) been sayng a11 day longr if they bre going

to show up , they show up , but they haven't shown up .

MR . FLYNN :

I gave them al1 the information that I

In liqht: of what Jlve heard today: I'm

very confident tha: someone is going Lo show up very shortly .

I doubt the U .S . A ttorney's Office -- this would be an attorney

10

who normally represents this agency on confidential

11

information , from wllat we were told today.

12

THE COURT :

13

MR . FLYNN : He 'd probably be from W ashington .

14

THE COURT : When we continue thls hhing, too, he can

15

16

Then 1et him show up .

show up .

MR . FLYNN : Well, the original order, Your Honor,

17

simp ly said they bve not met their shandard of proof.

18

course, they had al1 these declarations, all these affidavits,

19

most of which have now been shown to be extremely --

20
21
22

THE COURT : What original order?

Of

Judge Polaha 's

original order?
MR . FLYNN : Yes, the original order.

''Plaintiff

23

eTreppid 's application for temporary restraining order is

24

hereby denied without prejudice, and Plaintiff has not met the
252

CECILIA Vofflw NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filedt 05/28/08 Page 47 of 87


s.

-)

w,

standard of proof as reguired by NRCP 65B and C at the meeting

with the Court:.'f

THE COURT : Well --

MR . FLYNN : And, if anything, Your Honor, not only has

there been nothing more added: what has been brought into the

court today has been completely brought into question .

%HE COURT : A11 right . Here's what 1'm going to do .

We re going to continue this hearing until the time that will

be set by counsel and my administrative assistant.

I am going

10

to make a determination on whether or not the TRO will

11

continue .

12

5 o 'clock tomorrowr and 1'11 fax it to a11 the parties .

13

14

MR . FLYNN : And then weRll be able to comment on it ,

Your Honor, or subm it --

15
16

I will get you a written order no later than

MR . PEEK : Your Honor: until you make that decision,


could the order that exists today remain in place?

17

THE COURT ; Until 5 olclock tomorrow .

18

MR . PEEK :

19

THE COURT : Thats the order, until 5 o 'clock

Yes.

20

tomorrow . so kf I can 't do ite I can 't do itz but I think I

21

can .

22
23

24

MR . PEEK : Your Honor, can the order remain in p lace


until such time as the Court --

THE COURT: Well, 1'11 get the order done tomorrow .


253

CECILTA MOSI, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 48 of 87


F'...
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1'11 get it done if l've got to stay up tonight to do it# but

2
3

1'11 get it done .


And 1 do think that -- as f said, I had a conversation

with the judge. He told me he did not reach the merits on this

thing . And in my review of the material, I felt , when the TRO

was presented to me, that there was sufficient evidence to

support the TRO for the short period of time that we talked

8
9

about.

10

order?

11
12

have it .

13

the order.

14

prejudicez' and so I suspected that there might be something

15

more to that, and I asked him .

MR. FLYNN ; Would Your Honor like a copy of this

THE COURT : Ifve got Judge Potaha fs order.

16

'

If the clerk is willing, 1311 make a copy so you 'll

T've qo%

It was not clear to me when he said ''without

So like 4 said z I felt that when f reviewed itr after

17

he declined to do it, perhaps without prejudicez perhaps On the

18

merltsg perhaps not -- but when I reviewed it, I felt there was

19

enough for the TRO , and 1 granted it .

20

MR . FLYNN : Your Honor, I 'd ask the Court, while I was

21

thin king, to seriously consider whether money damages uould be

22

adequate and whether irreparable harm has been met on these

23
24

facts .

THE COURT:

If your client can 't afford to feed his


254

CECILIA MOSZz NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC
Document 644-22 Filed
k .
l 05/28/08 Page 49 of 87

fam ily, how is he going to afford to pay damages?

MR . FLYNN :

1 don 't Lhink thatfs relevant in

determining whether or not a judgment utimately could be

awarded against --

THE CQURT: You bre rlght . It 's probably not relevant .

MR . FLYNN :

MR . PEEK : This is a trade secret, too, in terms of

irreparable harm .

9
10

MR . FLYNN :

Jt's a trade secret only in term s of

M r. Montgomery; otherwiser he wouldnlt be here .

11

12

-- Mr . M ontgomery .

THE COURT: And this order is in effect unttl

5:00 p .m . tomorrow s February 8th.

13

That 's my decision .

MR . PEEK; And then you lll give us another one at that

14
15

tim e?

16

1111 tell you whether it 's extended or whether it 's not

17

extended, to what exLent.

18

We're in recess .

19

MR . PEEK :

20
21

THE COURT : 1111 qive you another one at that time .

Thank you , Your Honor .

(Proeeedings concluded.)
-000-

22
23

24
255

CECILIA VOHL, NV CCR #246 (775) 827-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 50 of 87

STATE OF NEVADA

COUNTY OF WASHOE

) ss.
)

I # CECILIA VOHL, Official Reporter of the Second

Judicial District Cotlrt of the State of N'


evada , in and for

the County of Washoe, tjtl hereby certify;

Th at as such repozter, I was present in Department

No. 9 of the above court on satd date, time and houry and I

then and there took verbatim stenotype notes of the

10

proceedings had and testkmony given therein .

11

That the foregoing transcript is a fullr true and

12

correct hranscription of my said stenotype notes' so taken

13

as aforesaid . That the foregoing transcript was taken down

14

under my direction and control, and to the besh of my

15

knowledge : skill and ability .

16
17

DATED : At Renoy Nevada, this


, 2006.

18

19

day of

?$r > =

CECILIA VOHL , NV CCR #246

20
21
22
23

24
256

CECILIA VOHLr NV CCR #246 (775) 82 7-0672

Case 3:06-cv-00056-PMP-VPC Document 644-22 Filed 05/28/08 Page 51 of 87


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(775)827-0672

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