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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
UNITED STATES DISTRICT COURTDISTRICT OF NEVADA
BEFORE THE HONORABLE VALERIE P. COOKE, MAGISTRATE JUDGE---o0o---
DENNIS MONTGOMERY and theMontgomery Family Trust,
Plaintiffs,
-vs-
ETREPPID TECHNOLOGIES, LLC,WARREN TREPP, and theUNITED STATES DEPARTMENT OFDEFENSE,
Defendants.
:::::::::::
::
No. 3:06-CV-56-PMP(VPC)
June 24, 2008
Reno, Nevada
:AND RELATED CASES ___________:
TRANSCRIPT OF CONTINUED ORDER TO SHOW CAUSE HEARING
APPEARANCES:
FOR THE PLAINTIFFS: DEBORAH KLAR and MARK GUNDERSON
Attorneys at Law
FOR THE DEFENDANTS: J. STEPHEN PEEK, JERRY SNYDER,BRIDGETT ROBB PECK, GREGORY SCHWARTZ andANDREW LIESEAttorneys at Law
FOR INTERESTED CARLOTTA WELLS and RAPHAEL GOMEZPARTIES: Assistant U.S. Attorneys
Reported by: Margaret E. Griener, CCR #3, RDROfficial Reporter400 South Virginia StreetReno, Nevada 89501(775)329-9980
COMPUTER-ASSISTED TRANSCRIPTION
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
2
RENO, NEVADA, TUESDAY, JUNE 24, 2008, 9:00 A.M.
---o0o---
THE CLERK: This is the date and time set for
the continued order to show cause hearing in case number
06-CV-0056-PMP(VPC), Dennis Montgomery, et al., versus
eTreppid Technologies, et al.
Present on behalf of plaintiff, Deborah Klar and
Mark Gunderson.
Present on behalf of defendants, Stephen Peek, Jerry
Snyder, Bridget Robb Peck.
Present telephonically on behalf of defendants,
Gregory Schwartz and Andrew Liese.
Present on behalf of interested party, Carlotta
Wells and Raphael Gomez.
THE COURT: Thank you very much. Please just
give me a moment to get my papers in order.
This is a continued hearing pursuant to this Court's
order to show cause concerning why Dennis Montgomery and the
Montgomery Family Trust should not be held in contempt of
court for failure to obey a series of discovery orders that
were issued in this case.
As the parties and counsel well know, we had a
day-long hearing on June 10, and it has been continued to
today.
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
3
Just some preliminary matters. First of all, the
Court, during the last -- the June 10th, hearing had several
exhibits, and I'm going to admit those into evidence.
Do counsel have any objections to those? I believe
those are Exhibits 1 through -- let's see, the Court's
exhibits, I believe, were 1 through 16. Is that correct,
Ms. Clerk?
THE CLERK: Your Honor, I show 1 through 18.
THE COURT: Were the court's exhibits?
THE CLERK: Yes.
THE COURT: All right. Do counsel have any
objection to the admission of those exhibits?
MR. PEEK: I don't, your Honor. I would just
like to have a list from the clerk so that we know what we
have because I don't think -- I don't think all 18 were
actually shown to the witness and identified.
THE COURT: All right. Ms. Klar?
MS. KLAR: Your Honor, we would like to see a
list before we take a position because --
THE COURT: All right.
MS. KLAR: -- Mr. Peek is right, they all were
not shown to the witness.
THE COURT: All right. What I'll do is at one
of the breaks we'll go ahead and take care of that, and,
Ms. Clerk, if you would provide copies of the exhibit list to
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
4
counsel, that would be helpful, and then we can take care of
that housekeeping matter.
The other matter, just for the record, the Court did
receive -- was filed at 7:35 p.m. last night docket 696 which
is the Montgomery parties' brief for a limitation on subject
matter of correspondence required to be produced pursuant to
eTreppid's request number 26 in request for production set 2.
And the Court notes it was filed but certainly isn't
saying any more than that because we're proceeding with this
hearing today. Whether it was filed with the intention that
it somehow be considered today, I don't know, but I just
wanted to note that the Court is aware it was filed.
All right. When we were last in session, Mr. Peek
was examining Mr. Montgomery, and I assume, Mr. Peek, you're
ready to proceed?
MR. PEEK: I am ready to proceed, your Honor.
I did want to at least -- I don't know that we need
to address document 696. I did receive it, did review it and
prepared argument to argue it.
And the reason I say that is it may go to at least
the good faith or bad faith of Montgomery in connection with
one of the productions because I think what he's going to
probably say is, well, I didn't understand the order because
that's what Ms. Klar says, I didn't understand the order, I
think it meant something other than what the request said.
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
5
So I'm not trying to urge the Court to decide that
right now or make a decision on it, but certainly it does
impact this hearing.
THE COURT: Mr. Gunderson?
MR. GUNDERSON: Your Honor, I do have one other
preliminary matter, and that involves the series of motions
involving the Flynn pleadings.
I think, as the Court is probably aware, an article
appeared in yesterday's Reno Gazette-Journal citing
extensively Mr. Flynn's pleadings with this court.
We have fully briefed the issues related to the
Flynn pleadings and believe that proceeding with that motion
still pending would be highly prejudicial to Mr. Montgomery
and raise issues that are collateral to this proceeding, and
we would like to have a ruling on that, if we could, prior to
commencing today's hearing.
THE COURT: Well, I appreciate that,
Mr. Gunderson, and I appreciate your concern.
There are -- we are now at docket number 696 in this
case. This Court and Judge Pro, the district judge, we are
doing our best to try to keep up with the many motions that
are filed.
This is another example when -- this paper was filed
yesterday at 7:30 in the evening. This is a practice. My
problem is there are not enough hours in the day for me to
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
6
address all of these in the time -- and I appreciate counsel
have very compelling reasons why they are concerned about
this.
I also have a docket of 400 other cases that I have
to attend to on a daily basis. So I'm not prepared and I'm
not going to rule on those motions.
I'm aware they're under submission, and I will do my
very best to -- along with all of the other motions that are
pending -- we spent a day, I think -- I know you were there
last week -- an entire day dealing with a series of complex
discovery motions that the parties have been dealing with.
That's just an illustration of the problems the Court is
confronted with in dealing with this case.
So, while I certainly appreciate your point of view,
the Court is not prepared to rule on those motions today and
will not do so.
MR. GUNDERSON: Well, it is of such importance
to Mr. Montgomery and the Montgomery parties, your Honor, that
we feel that that has to be addressed as an item before we go
forward, and if we can't have a ruling on that, we would ask
that this proceeding be stayed until we do have a ruling so we
know what ground rules we are operating under.
THE COURT: Then this is my question,
Mr. Gunderson. If you were going to make such a request for a
stay -- this hearing was set on June -- we had a hearing on
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
7
June 10th. Today is June 24th. I received no filing from the
Montgomery parties requesting a hearing in advance of this
that this -- and so on.
And so now here we are at 9:15 a.m. on the day of
the hearing, and you're saying, well, you know, it's of such
importance that we can't possibly go forward when everybody is
here ready to proceed.
MR. GUNDERSON: I don't disagree with that.
Had it not been for the action that occurred
yesterday, which is just a recently-discovered or
recently-performed act when we pick up the newspaper first
thing on Monday morning and here's a news article. I never
even saw it, unfortunately, until after it had been published
and it had been out there in the newspaper and had a chance to
talk to my client.
I was in a hearing all day yesterday in Las Vegas.
I finally had a chance to talk to Ms. Klar and Mr. Montgomery,
and this is the reason that it's being made orally today.
It's not because we didn't have the capacity or the ability or
the intention to bring it to your attention.
If we had an extra day, if we had had a day, that's
the unfortunate part about it. This is the precipitating
event that necessitates my request to the Court.
THE COURT: All right. Thank you.
Mr. Peek.
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
8
MR. PEEK: Your Honor, I have nothing to say. I
think the Court is well versed in this.
Certainly, if the Court looked at its docket for the
last three or four days, they would see not only the paper
filed at 7:20 last night, but many, many more papers filed at
the end of last week. They certainly had adequate opportunity
to do that.
This is not a jury trial where he can argue jury
prejudice, that the pool has been tainted. Is he saying that
the Court has been tainted somehow by a newspaper article? I
think we know that he's not saying that.
So I don't know what it means the fact that there
was a newspaper article out there.
The papers have been filed, the Court is aware of
them. They've been fully briefed. The Court is certainly
capable, if she did, in fact, read the paper, of separating
the article, which is really a recap of the papers, which the
Court is going to have to do anyway to make the decision. So
I don't see how it has any bearing.
THE COURT: Well, the oral motion to stay these
proceedings that Mr. Gunderson has made is denied, and we're
going to go ahead and proceed.
So with that, are you ready to proceed?
MR. PEEK: I am ready, your Honor. I'm waiting
for Mr. Montgomery to take the witness stand.
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
9
THE COURT: All right. Mr. Montgomery, take the
stand, please.
MS. KLAR: Your Honor, just a housekeeping
matter?
THE COURT: Yes.
MS. KLAR: During the recent hearing last week,
status conference, you had requested that Mr. Montgomery
submit a declaration, which he did do.
THE COURT: Right.
MS. KLAR: Since we have had an opportunity to
look at those photographs, we have determined that the -- and
we have provided photographs that are Bates stamped 1490
through 1599, DM 1490 through 1599, and those are appended, I
believe, to Mr. Montgomery's declaration.
We would request that those CDs be eliminated from
this case because all of those CDs relate to a time before
Mr. Montgomery ever became involved with eTreppid. They are
all prior to September of 1998.
And given the scope of the search warrant, we're at
a loss to understand why these CDs were taken in the first
place, but they were, and those are the facts, and we think
that those CDs should be eliminated from this record and not a
subject of discovery because clearly they have nothing to do
with anything that is currently before the Court.
THE COURT: All right. So, first of all, just
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
10
so our record is clear, the court's record that is -- you're
referring to docket number 690, Ms. Klar, which was filed
June 20, 2008, entitled Declaration of Dennis Montgomery
Regarding Efforts to Search For CDs Depicted in FBI Photos?
MS. KLAR: That is correct, your Honor.
THE COURT: All right. And so Exhibit A starts
with -- is numbered DM 890, and I don't know if this is -- is
this serially, consecutively numbered to 14 -- the last page
is 1599. That's what I have.
MS. KLAR: Yes, your Honor.
I think what I -- it's probably part of Exhibit C,
and perhaps on a break I can go through and just identify for
the Court the specific pages that are part of Exhibit C
because I'm not sure they're all in there sequentially.
THE COURT: Maybe I don't have -- maybe I just
have --
MS. KLAR: Exhibit --
THE COURT: Maybe I just have --
MR. PEEK: Your Honor, Exhibit C begins at Bates
number 1556 if it's in your copy.
THE COURT: Oh, okay.
MS. KLAR: That's not --
THE COURT: I've got it.
MS. KLAR: My Exhibit C starts with 1469.
THE COURT: My Exhibit C starts at 1556.
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
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MR. PEEK: She must have a different Exhibit C
than we do, your Honor.
THE COURT: Well, why don't -- Ms. Klar, this is
what we're going to do, is we need to -- obviously there's
some confusion about what Exhibit C is, and I'm sure it can be
taken care of and clarified during a break.
I'm not sure -- I'm not sure why you're asking that
the Court now decide what is in docket number 690 not be part
of this case. I'm a little unclear why you're asking for that
relief at this time. Do you want to explain that?
MS. KLAR: The reason, your Honor, is really
quite simple. I don't think it's a proper subject of
questions, and I don't want to have the Court spending its
time or our collective time on these CDs when we now
understand that they all relate to a time frame before
Mr. Montgomery ever became involved with eTreppid.
THE COURT: All right.
MS. KLAR: So it's a housekeeping matter more
than anything.
THE COURT: All right.
MR. PEEK: Your Honor, this needs to be fully
briefed.
I mean, to give you an example, document 1596 says
source code 9-10-96. I don't know if that source code may or
may not relate to CD 1. I don't know if that source code
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
12
relates to work that Mr. Montgomery said he undertook and
performed before he came to eTreppid and whether or not that
source code has any relationship to this case. It may have.
So I don't think just sort of an on-the-fly motion
by Ms. Klar when we were here last Tuesday and the Court asked
a number of times is there anything else.
These photos have been available to them for some
time now, and now all of a sudden they want to come and say,
oh -- on the moment we're about ready to the start, well, gee,
I don't want to have the Court talk about or include anything
before September 1998.
Well, let's have that briefed. I want to see what
the argument is. I want to know from Mr. Montgomery what
might be on those because I don't know that. Just because
they have a date pre-September 1998 doesn't necessarily not
make them discoverable.
THE COURT: Well, it may, as Ms. Klar has
pointed out, simply be a housekeeping matter, or it may not.
I'm not prepared to rule on that. I mean, again, I have no
idea.
I mean, what -- I haven't reviewed these exhibits
other than to see just generally what they are. I don't -- I
presume that Mr. Peek has had some opportunity to do so, but
I'm not going to enter a ruling at this time concerning what
is and isn't part of this discussion.
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
13
This is what Mr. Montgomery has been asked to do by
the Court is to provide a review and tell the Court what he's
found, which he's done, and that's fine.
So to the extent that the Montgomery parties feel
that it's extraneous, I think it's going to have to be
briefed, and I'm really at a loss to make a decision on that
at this time, Ms. Klar. It may be well taken.
MS. KLAR: Your Honor, given your comments about
the docket in this case and how many motions have been filed,
I'm just trying to expedite things.
THE COURT: Right. Why don't you -- well, and
you may -- I appreciate that, Ms. Klar.
At a recess or break today, perhaps you can speak
with Mr. Peek, and it may be that you can reach some
understanding because I have an abiding interest in reducing
the number of papers filed in this case, and I suspect counsel
may have a similar feeling, and the parties, so that we can
move the case along.
MR. PEEK: I have a similar one, but I also have
an abiding interest in openness and completeness, and I don't
think I've had openness and completeness, your Honor.
THE COURT: All right. Well --
MR. PEEK: That's why we're here.
THE COURT: Right. We shall see.
I would like the two of you to discuss this issue at
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
14
a recess, see if you can reach an agreement, and, if you
can't, I guess we'll have to take it up. All right?
Mr. Montgomery, sir, do you understand that you
continue to be under oath, sir?
THE WITNESS: Yes.
THE COURT: All right. Very good. You may
proceed.
MR. PEEK: Thank you.
D E N N I S M O N T G O M E R Y,
recalled as a witness on behalf of the Plaintiff,having been previously sworn, testified further as follows:
CROSS-EXAMINATION RESUMED
BY MR. PEEK:
Q Just to stay on this subject matter for just a moment
about the CDs, I'm going to come back to it later in more
detail, but one of the things that I found absent in your
declaration is an identification of what five CDs you were
unable to locate. What are they?
A There were at least two, if not three. I don't recall
specifically.
Q But you certainly did have the photographs available to
you, did you not, sir?
A Yes.
Q And the photographs certainly were reviewable and had
names on them, did they not?
A Several of them are very difficult to read.
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
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Q I understand, but on the ones that you couldn't read it,
you must have said to yourself I can read this one, or I can't
find that one, and there are five of them.
You didn't say I can't read these and I don't know
what they are, you said I know there are five that I could not
locate. What five are they that you did not tell us about in
your declaration?
MS. KLAR: Objection, your Honor, argumentative.
THE COURT: Overruled. Go ahead.
MR. PEEK: Thank you, your Honor.
THE COURT: Answer the question.
THE WITNESS: I don't know specifically.
BY MR. PEEK:
Q Well, did you know when you gave this declaration on the
20th of June, last Friday, that there were less than five CDs
and what the names were? Did you know that last Friday?
A I believe I was doing it by the count.
Q Well, you say,
"Despite my diligent efforts, I have not been
able to locate a small number (less than five) of the
CDs depicted in the FBI CD photos, and I cannot say
with absolute certainty that all CDs reproduced on
Exhibits A, B and C matched CDs depicted in the FBI
CD photos."
So you're just telling me that the five was just
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MARGARET E. GRIENER, RDR, CCR NO. 3, OFFICIAL REPORTER
(775) 329-9980
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based on the count --
A No, I --
Q -- of the number -- sorry -- of the number of CDs in the
photos versus the number of CDs that you have.
A No, I believe there was one or two pictures that I could
not find the CD for.
Q And you didn't tell the Court, though, that you could not
read and therefore could not locate, did you?
A I don't -- I don't have it in front of me.
Q You mean the declaration?
A I don't have the declaration in front of me.
Q Let me just hand you --
MR. PEEK: May I approach, your Honor?
THE COURT: You may.
BY MR. PEEK:
Q This is page 2 of docket -- excuse me, page 3 of docket
690, your declaration, and I'm looking at your paragraph 7.
Do you see that?
A Yes, I see it.
Q And you don't say there that you could not locate the
less than five because you could not read on the photographs
what they were, do you?
A I believe it says the print or -- writing is fuzzy or
illegible.
Q Okay. And you said, "Despite my efforts, I was unable to
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locate less than five." You don't say I was unable to locate
them because I could not read.
A It says writing is fuzzy or illegible.
Q I was reading from the paragraph, "Despite my efforts" --
A So am I.
Q Okay.
A I'm reading the same paragraph.
Q Now, is there a CD in the group that is labeled "Warren's
old e-mail"?
A I believe there was a picture of that, yes.
Q So you read that one.
A I believe there was a picture of that.
Q Okay. So you could see it was not fuzzy, it wasn't
illegible?
A I don't remember if that was one of the fuzzy ones or
not.
Q Okay. But you remember that, correct?
A Correct.
Q Did you produce that one?
A Not that I know of.
Q And why?
A Because I've been unable to locate it.
Q And where did you search?
A Ever, you mean, or --
Q Well --
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A I thought we went through --
Q First of all, the request for production has been
outstanding for over two years. I'm just wondering where it
was that you searched for the CDs.
A My home in Reno.
Q Okay.
A Home in Yarrow Point.
Q Okay.
A Storage in Yarrow Point.
Q Okay.
A Storage in Rancho Mirage.
Q Okay.
A Home in Rancho Mirage.
Q Okay. Now, when the CDs were returned to you by the FBI,
you recall that eTreppid made a motion to have a forensic copy
of all of the electronic data. Do you recall that?
A No.
Q You don't recall that.
Do you recall that you opposed that request?
A I don't recall that specifically.
Q And do you recall that the Court ordered, in lieu of a
forensic image, that all photographs be taken?
A No.
Q And do you recall that the reason why he wanted
photographs to be taken is to assure all the parties that what
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was returned was, in fact, preserved. Do you remember that?
A No.
Q And do you remember that the Court in its order with
respect to the photographing ordered that you, you know,
preserve and protect those CDs?
A I know there was something saying that I needed to
protect them. I don't remember that it said that they needed
to be photographed.
Q Okay. And do you recall -- now, you picked them up on or
about March 29, correct?
A Yes.
Q And you -- once they were given to you, you were in the
presence of your lawyer, Mr. Pulver? He was present was he
not?
A Yes.
Q And Ms. Blixeth was present, was she not?
A Yes.
Q And Mr. Scalia, who is in the courtroom was also present,
was he not?
A Yes.
Q Okay. And then you got on the airplane, on Ms. Blixeth's
airplane, private jet, with the --
MS. KLAR: Objection, your Honor.
MR. PEEK: I'm trying to get the chain of
custody where these went, your Honor.
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MS. KLAR: We've been through this at the last
hearing extensively.
MR. PEEK: We did not, your Honor.
MS. KLAR: I read it last night in the
transcript.
THE COURT: Well, I'm going to just
foundationally allow you to go ahead and go through this.
There was testimony at the June 10th hearing
concerning Mr. -- and Mr. Montgomery testified, as I recall,
about where he kept --
MR. PEEK: And there's one gap in it, your
Honor, that I want to --
THE COURT: And I think that Mr. Peek is
entitled to just clarify that for the chronology.
Go ahead, sir.
BY MR. PEEK:
Q You got on the private jet of Ms. Blixeth and --
THE WITNESS: Can I move this monitor?
THE COURT: Oh, you may, sir. Thank you. Thank
you.
THE WITNESS: Go ahead.
BY MR. PEEK:
Q You gathered the property returned to you by the FBI, did
you not?
A Yes.
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Q And then you took it on an airplane, Ms. Blixeth's
private jet?
A Yes, but the way the FBI returned the property was very
unusual.
Q I understand that, and that may or may not be the subject
of another hearing, but the property that was given to you by
the FBI was carried by you, or somebody else in this group,
Ms. Blixeth or Mr. Scalia or Mr. Pulver, and taken in a car to
the private jet, correct?
A Yes, I -- the answer is yes.
Q And where did the private jet land?
A Rancho Mirage.
Q And did it drop you off at Rancho Mirage?
A Yes.
Q And when you were dropped off, did you take the material,
the seized property, with you?
A Yes.
Q And then you entered a car?
MS. KLAR: Objection, your Honor, this has all
been gone through by Mr. Peek at the last hearing. He asked
the very same questions.
THE COURT: Once again, I'm going to just
overrule the objection. I think that for purposes of
Mr. Montgomery's declaration, just for bringing us back to the
issue concerning the FBI return, it's helpful to the Court to
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just briefly go back over this chronology of events.
So go ahead, sir.
BY MR. PEEK:
Q You rented a car there?
A I don't recall if I rented a -- yes, actually I did, yes.
Q Okay. And you took the seized property that had been
returned to you and put it in that car, did you not?
A Yes.
Q And that was on or about March 29th or March 30?
A Same day.
Q Okay. Did the plane go directly from Reno to Rancho
Mirage, or did it make a side trip?
MS. KLAR: Objection, relevance, your Honor.
MR. PEEK: I'm trying to follow a chain of
custody, your Honor, to make sure that there is no gap here.
THE COURT: Overruled.
MS. KLAR: Your Honor, there's been testimony
that Mr. Montgomery had the CDs and everything else with him
in his possession, custody and control while he was on the
plane. Whether the plane stopped someplace else or not has
nothing to do with whether or not Mr. Montgomery ceased to
have --
MR. PEEK: We're spending more time on
argument --
MS. KLAR: -- the documents --
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THE COURT: Go ahead.
MS. KLAR: -- in his -- whatever he took from
the FBI in his custody or control.
I mean, the fact that it may have stopped someplace,
what does that have to do with anything?
THE COURT: Overruled. Just go ahead.
THE WITNESS: The plane didn't stop.
BY MR. PEEK:
Q Okay. And how long did that property remain in that
rental car?
A I want to say that day and through the night, though I
did take some of it out.
Q And where did you put it?
A In the room I was in.
Q So you were, what, in a motel room or something?
A No, I stayed on her property.
Q Oh, I thought -- her property is in Rancho Mirage.
A Yes.
Q Is that where Porcupine Creek is?
A Yes.
Q Okay. So some of it, then, was taken out of the trunk of
the car, you think, and put in a room?
A Right, with me.
Q And so how long did it stay in your room and in that car?
A Until I left.
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Q And when was that?
A I believe the next day.
Q And so whatever you took into the room you put back into
the trunk of the automobile?
A That's correct.
Q Where did it go from there?
A To the airport. I don't believe I went directly to the
airport.
Q But wherever you went and had an intermediate stop,
everything went with you?
A No.
Q Okay. So there was an intermediate stop and some of it
was left someplace?
A I had a storage facility in Rancho Mirage.
Q Okay. And what of the property was put in the Rancho
Mirage, if any?
A I don't know exactly but some portion.
Q Some portion of it was put in the storage facility and
some portion of it remained with you, and then where did the
portion that remained with you go?
A Yarrow Point, Washington; Bellevue, Washington.
Q Okay. And did you make a list of what you left at the
storage unit versus what you took with you?
A No.
Q Did you segregate what you put in the storage unit from
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other things that were in the storage unit?
A Initially, yes.
Q Okay. And then when you took it to Washington, did you
put it in another storage unit in Washington, or did you put
it in your home in Washington?
A What I wanted to correct which I didn't say on the
last -- can I answer this --
Q That's why we're doing this, we want to make sure we get
it accurate.
A I didn't mention Washington, I don't believe, and you're
asking that, and if -- okay, and I was here to correct that
today.
Q I thought so, too, that your testimony is different today
than it was the last -- two weeks ago.
A No, it's not, because you asked me specifically about the
disk drives, and I believe what I took was CDs, but either
way, I took some portion with me on the plane to Bellevue,
Washington.
Q Okay. And then you put it in your storage unit there or
in your home?
A My office -- we had a storage unit and there is some went
in my office.
Q Okay. So now we have the seized property broken up into
three segments, am I correct, some in the --
A Yes.
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Q -- Yarrow Point, is that -- Yarrow point, am I saying
that --
A My home was in Yarrow Point, my office is in Bellevue.
Q Some in Yarrow Point, you don't know what exactly, maybe
CDs, maybe the disks, some in your office in Bellevue, and
some in the storage facility in Bellevue; is that correct?
A Yes.
Q And was there -- is that the extent of the -- sort of the
segregation of the -- broken down into three parts?
A From the original pieces --
Q Yes.
A -- that I returned.
Q Yes.
A Yes. I think so, yes.
Q You think so.
Did you, in your office in Bellevue, segregate
whatever it was that you took with you from other items that
you had?
A Yes.
Q Okay. And then what you put in the storage unit in
Bellevue, did you segregate it from other items that you may
have had in that storage unit?
A Yes.
Q And how did you segregate it in your office?
A I just put it in a separate box.
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Q Okay. And how did you segregate it in your storage
facility?
A Same way.
Q Okay. So you put it in a separate box. Was the box
labeled?
A Yes.
Q Okay. So each of the boxes in the Bellevue storage unit
and your office were labeled, correct?
A Right.
Q And what did the labels say?
A FBI-raided material.
Q Okay. And then did you put the -- the seized property
that you put in the Yarrow Point storage facility in a similar
box?
A I'll correct this. The Yarrow Point is my home.
Q I'm sorry, you had said storage facility at Yarrow Point.
A I'm sorry, I'm correcting it.
Q So, again, we are changing the testimony --
A No, we're not changing the testimony.
Q But you put it in your home.
A Right. I mean -- no, there was a storage facility in
Bellevue, Washington, we had an office in Bellevue,
Washington, and I had a home in Yarrow Point.
Q So you put the property in your home in Yarrow Point,
correct?
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A Yes.
Q Okay. And you segregated it from whatever else you had.
A Yes.
Q And how did you segregate it?
A I marked it.
Q And in what manner did you mark it?
A Same way I told you before, FBI-raided material.
Q And was it in a box --
A Yes.
Q -- or more than one box?
A A box.
Q Okay. So now we have three boxes of materials in three
separate locations each labeled FBI-raided material; is that
correct?
A No.
Q Okay. What else did you do?
A Because it took more than three boxes to hold it.
Q Okay. How many different boxes, then, were there and
where were they in each location?
A The physical devices, the computers, the nonelectronic
media I left in the storage place. That would be the
computer, the driver, the Granite Digital device holder.
The only thing that was moved was the actual CDs and
the DVDs from time to time. So what I'm saying --
Q I'm just trying to start with -- I'm getting a starting
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point, and I want to just stick with the starting point, then
I'll move forward.
I know you want to do it quicker than I do, but the
starting point is you put it into three places, and it was --
some was in boxes. Now, are you telling us some was not --
some of the material was not in boxes?
A They were never at all three places at the exact same
time. So I may have taken two boxes, I may have put one in my
home, one in my office.
Q Well, we're trying to understand what you did.
You stopped off at Yarrow Point and put some of the
seized material in your home in the Yarrow Point; is that
correct?
A That, I believe, is correct.
Q And you don't know what material you put in your home in
Yarrow Point; is that correct?
A That's correct.
Q But you know that you put it in a box or more than one
box, sir?
A I believe initially it was in one -- I don't know if it
was one or two boxes.
Q Okay. So maybe one or two boxes in the home in Yarrow
Point each with a label, I assume handwritten --
A Yes.
Q -- of FBI-raided material, correct?
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Am I saying that -- is that correct or --
A I believe -- I believe so, that's correct.
Q Okay. So then the remaining items you then took on the
airplane with you to Bellevue, Washington, and separated it
again.
A No.
Q Okay. No. Sorry. We'll start over again.
A I didn't take the box physically on the plane, I just put
the material into my luggage, took it onto the plane. When I
got to where I was at, I look a legal box, wrote on it
FBI-raided material and put it in it.
Q Okay. So let's go back then.
So what you had left over of the FBI material that
you did not leave at Yarrow Point fit into a suitcase?
A No.
Q Is that correct?
A No, no, that's not what you asked me.
MS. KLAR: Objection, your Honor, I think that
Mr. Peek is confusing Yarrow Point with Rancho Mirage. The
witness has testified he left material -- left something in a
storage unit in Rancho Mirage.
MR. PEEK: He did not say that.
THE WITNESS: Yes, I did.
THE COURT: I think he did. I think my
understanding --
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MR. PEEK: Then I apologize, your Honor.
THE COURT: All right. So my understanding is
that when -- and so then perhaps you can just clarify, is that
when you went to Rancho Mirage, you left some material in
Rancho Mirage.
You flew from Rancho Mirage to Washington. You have
a residence at Yarrow Point, an office in Bellevue.
Some of the material that you took -- you took
material with you from Rancho Mirage to Washington. Some of
it is in a box or boxes at your home in Yarrow Point labeled
FBI-raided material, another box or boxes are at your storage
unit.
MR. PEEK: No, there are two -- there are
actually now four places, your Honor. If I can go back to
this, I would appreciate it.
THE COURT: All right. So, anyway --
MR. PEEK: I understand the objection, and I'll
try to clarify.
MS. KLAR: Your Honor --
BY MR. PEEK:
Q So what you left Rancho Mirage --
THE COURT: Wait.
MS. KLAR: Your Honor, if I could also make an
objection.
The focus of the hearing is on what you have ordered
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Mr. Montgomery to produce. He has been ordered to produce
hard drives. There's no dispute. The hard drives have been
produced. They had serial numbers and they've been produced.
He's been directed to produce CDs. We have provided
a declaration, and the only thing that's at issue here is five
CDs, or less than five CDs.
We have now spent 15 minutes talking about where all
of this material was transferred to. Most of it is in no way
relevant to your order.
And my request would be can we keep this focused on
the things that are in dispute which are the less than five
CDs which are the subject of Mr. Montgomery's recent
declaration.
MR. PEEK: Respectfully, your Honor, Ms. Klar
wants to try her case in the way she frames the issues. I
want to try it the way I see the issues framed, and what I see
is that Mr. Montgomery has testified that he had the material,
he commingled it, and he can't find everything.
And now he says I can't even locate five CDs. Not
only has he not located the five CDs, but we don't even have
electronic copies of the CDs, the photocopies of which we now
have, and of the photocopies that we have, and of the
electronic versions that we have, we have electronic copies of
CDs that were not seized, and I don't know why we have that
other than Mr. Montgomery, I'm sure, will say, well, I didn't
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know what the FBI returned and so I just gave you copies of
things.
He has only given us the date. Five of the 100 and
some odd -- 160 some odd CDs that were seized by the FBI, we
only have five -- approximately five electronic copies of
those. So I've been trying to understand where this material
was, what he did with it.
We also have issues, your Honor, with the electronic
production on the two hard drives, and, you know, I don't know
whether any of that was or was not seized by the FBI, or
whether or not it was maintained and how its integrity was
maintained. I don't know whether there was spoliation of even
the 30 hard drives that he has now delivered to us, copied and
delivered to us.
So there's a lot of material here, your Honor, that
I want to be able to go over with Mr. Montgomery in this
hearing to show the bad faith in which Mr. Montgomery has
conducted himself over the course of the last four months from
February 21st until today, February [sic] 24th.
MR. SCHWARTZ: Your Honor, this is Greg Schwartz
in Seattle representing Atiego. May I make an objection at
this point as well?
THE COURT: Go ahead.
MR. SCHWARTZ: I don't want to weigh into this
because Atiego has no position as to the substantive issue
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being addressed at the moment, but I do want to add an
objection to Ms. Klar's.
It appears to me that Mr. Peek is going beyond the
scope of the hearing and essentially treating this as a first
chance at a deposition.
There will be an opportunity to depose
Mr. Montgomery at some point. In the interest of my client, I
would ask that the Court limit the scope of this hearing to
the issues the Court needs to make its decision on the order
to show cause which I think are quite a bit more limited than
the scope of Mr. Peek's questioning.
THE COURT: Well, thank you, sir.
Well, this is -- the Court is looking at its order
to show cause, docket 646, dated May 29, 2008. It indicates
that, in summary, among the items the Montgomery parties were
ordered to produce were photocopies of the faces of all CDs
seized during the FBI's March 2006 search of the Montgomery
residence and storage unit and a copy of any CDs seized by the
FBI and marked as eTreppid CDs.
This line of questioning to me is relevant to the
document production that was ordered by the Court to
understand, to the extent, as part of this Court's discovery
order, why or why not these items that were ordered produced
cannot be produced is highly relevant to what the Court
perceives this hearing to be about.
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And, for example, it may be that -- I would like to
hear what Mr. Montgomery has to say about his efforts to
maintain the items that were seized, problems that arose.
That's helpful to the Court.
So I'm overruling the objections. I do recognize
and understand that this is not a deposition, and to the
extent I wish this proceeding to be narrow in its scope, and I
am mindful of that.
So with those comments -- and I'm mindful -- I'm not
interested in this being a deposition.
MR. PEEK: I'm not either, your Honor.
THE COURT: So -- well, so, proceed with these
questions. I would like to know where these items are, what
happened to them. I think it's relevant. Please proceed.
MR. PEEK: Thank you.
BY MR. PEEK:
Q I apologize, Mr. Montgomery, for my misunderstanding of
the fact that -- some of the items were left at -- actually,
they were left at what's called Porcupine Creek, weren't they?
A No.
Q They were left at Rancho Mirage in a storage unit?
A Yes.
Q Okay. Let me go back then.
So what we had is the first stop you made after
leaving Porcupine Creek was the storage facility in Rancho
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Mirage.
A Yes.
Q And some items were put in that storage facility in
Rancho Mirage.
A Yes, outside of Porcupine Creek.
Q Outside of Porcupine Creek, in a public storage facility
where you pay fees for storage.
A Yes.
Q What was the name of that?
A I don't remember the original name.
Q What was the address of it?
A It was on Diana [sic] Shore.
Q Okay. Now, so the first stop you made was Rancho Mirage,
and items were put there. Were they put in a box?
A You mean, the storage unit?
Q In the storage unit in Rancho Mirage.
A The electronic media was, but the other stuff, the
documents they took from me and so forth, those were put in a
separate box, and then the computer and so forth were just set
by themselves.
Q Were those the three things, then, the electronic media,
the paper documents and the computers, that were left at the
Rancho Mirage facility?
A As a result of what was given to me on the 29th, is that
what you're asking me?
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Q From the material given to you, all of the FBI-seized
property returned to you on March 29th that you took on the
airplane and put in the rental car and then went to Porcupine
Creek, Ms. Blixeth's home, is that correct, or Ms. Blixeth's
estate?
A Yes.
Q Okay. So that's the material I'm talking about.
A Yes.
Q Okay. So we have in the Rancho Mirage storage facility,
a public storage facility, three categories of seized
property, electronic media, paper documents and computers; is
that correct?
A Yes, yes.
Q And the electronic media was put in a box?
A Yes.
Q Was the box labeled?
A You just asked me that.
Q Was the box labeled FBI-raided material?
A Yes.
Q Okay. So it was therefore segregated in some manner from
other items in the storage facility; is that correct?
A Yes.
Q And then you then make another stop at your home in
Yarrow Point; is that correct?
A I leave from --
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Q You went from the Rancho Mirage storage facility to your
home in Yarrow Point; is that correct?
A Yes.
Q And you left also items of the FBI-seized property in
your home in Yarrow Point; is that correct?
A Yes.
Q And what items did you leave there?
A Well, the stuff that was taken.
Q What were they? There was a lot of things taken that are
the subjective of the photographs and the search.
A I believe disk drives and the CDs.
Q Okay. All CDs or just some CDs?
A Some.
Q Okay. So some CDs. All disk drives or some disk drives?
A Some.
Q Okay. So some disk drives, some CDs.
Now, the electronic media that was left at the
Rancho Mirage facility, what electronic media was that?
A Well, you just asked. It's the same material --
Q Which ones --
A The portion that was not taken with me.
Q Okay. So some CDs and some hard drives were left in the
Rancho Mirage storage facility, correct?
A Correct.
Q Some CDs and some disk drives were left in the Yarrow
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Point home, correct?
A Yes.
Q And put in one or two boxes in the Yarrow Point home.
A I think two.
Q Okay. And also labeled FBI-raided material, correct?
A I believe so, yes.
Q And then what was left was put into your suitcase; is
that correct?
A No.
Q Okay.
A Well, I mean, whatever I left here I took with me on the
airplane in a suitcase.
Q That's what I said. Whatever was left that you had not
left at Rancho Mirage or not left at Yarrow Point you put in a
suitcase.
A No, that's not true because --
Q It was already in the suitcase?
A I had to get from Rancho Mirage to Yarrow Point.
Q So --
A That was put in a suitcase, taken on a airplane with me.
When I arrived in Yarrow Point, I took it out of the suitcase,
put into it a box --
Q Okay. I apologize. So you went from Rancho Mirage to
Yarrow Point in the airplane.
A Commercial flight, that's correct.
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Q Commercial flight.
And what you took was the items that had not been
left at Rancho Mirage, and you put them in a suitcase; is that
correct?
A Say that --
Q The items that --
THE COURT: Let me just interject. Let me just
ask a clarifying question.
You got on a plane, and you put any of the items
that were seized by the FBI that you didn't store in Rancho
Mirage, you put them in a suitcase. You flew from Rancho
Mirage to Washington state, so you have one suitcase, correct?
THE WITNESS: Yes.
BY MR. PEEK:
Q Okay, just one suitcase.
A Yes, I believe so, that's correct.
Q Okay. And then you went from -- after it landed you went
to Yarrow Point first?
A I don't recall specifically if I did.
Q But whatever stop you made, one of the stops was Yarrow
Point, and you put some of the material in your suitcase into
one or two boxes.
A That's correct.
Q And they were labeled FBI-raided material.
A I believe so, that's correct.
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Q And then, as I understood you to say, there was still
some FBI-raided material or seized material that had been
returned to you still left, and you took it to your office in
Bellevue, correct?
A Left where?
Q Left over from what you hadn't deposited in Rancho Mirage
or your home.
A No.
Q So was there anything left over after you --
A No, I believe I originally just put it in my home.
Q Okay. So now we have two locations where the FBI-seized
material was kept within days after it was returned to you.
A Yes.
Q Rancho Mirage and Yarrow Point.
A The storage facility in Rancho Mirage, correct.
Q Okay. And at sometime, as you told us, that it was in
your office and in a separate facility in Bellevue,
Washington, when did that occur?
A I don't know specifically when but sometime during a
three- or four-month period.
Q And was it just the material from your home in Yarrow
Point that you took to Bellevue and then separated into two
parts, or was it some of the Rancho Mirage?
A Both.
Q Okay. So you put some of the FBI-seized material
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together, some from Rancho Mirage, some from Yarrow Point, and
did you take that to your office in Bellevue?
A At some point, yes.
Q At some point.
A Yes.
Q Within, what, the next two or three months?
A I would say over that period, yes.
Q And then you -- was it still in the FBI -- or in the
boxes labeled FBI-raided material?
A I believe so, yes.
Q And then you segregated whatever you took from Yarrow
Point and Rancho Mirage in two, again, more segregations?
A No, because the boxes weren't full. I mean --
Q Well, you told us earlier that you had taken some of the
material that you had collected and put in your Bellevue
office, that was separated into two, some put in a storage
facility in Bellevue and some kept at our office.
A Right. From that suitcase, put into two newer boxes in
Yarrow Point. Now there are four boxes.
Q I'm understanding that so far. Then how many of those
four boxes ended up in Bellevue?
A All of them.
Q All four of them ended up in Bellevue, okay.
A All of it ended up in Bellevue, all of the electronic
media ended up in Bellevue.
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Q What remained at Rancho Mirage, then, just the papers?
A The papers and the nonelectronic physical media, the
actual -- there was a computer and there was, I think, two
storage units, you know, two Granite Digital drive containers.
Q And no media inside the Granite Digital drive containers?
A No.
Q Okay. And the Granite Digital drives were eTreppid
property, were they not?
A I don't recall specifically if they were or not.
Q So all the electronic media, then, ended up in Bellevue,
Washington, of the four boxes?
A I can't say that only four boxes ended up being in Yarrow
Point. It might have been six, it might have --
Q Okay.
A Do you want me to answer the question?
Q I'm waiting for you to answer, sir.
A Well, I'm telling you, at some point I made additional
boxes because the boxes were very heavy. So, you know, I made
two -- I think I made two boxes. I think all together there
were six boxes.
Q So you made two additional boxes that contained what, the
Rancho Mirage material or the Yarrow Point material?
A At some point both.
Q Okay. And now you have six boxes.
A Yes.
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Q And are they all labeled?
A You mean now or then?
Q Then. When you put them into the six boxes -- we know
that there were four boxes you told us.
A I believe so.
Q Okay. Am I correct when I say there were four boxes, two
in Rancho Mirage and two in Yarrow Point?
A Yes.
Q Okay. And of those four boxes, now, they got put into
six boxes; is that correct?
A Yes.
Q How was the material shipped from Rancho Mirage to Yarrow
Point?
A I carried it on an airplane.
Q In boxes or in a suitcase?
A No, in a suitcase.
Q Okay. And that was sometime two or three months after
the property was returned to you?
A I don't -- over what period of time? I don't know
specifically. It would be more like probably closer to, like,
six months.
Q Was it in more than one trip then?
A Yes.
Q Okay. So from time to time you would go to the Rancho
Mirage facility, pick up certain items out of the FBI-raided
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material boxes, put it in a suitcase and take to it your home
in Yarrow Point, correct?
A Yes.
Q And you did that, you don't know how many occasions, but
you did it on a number of occasions?
A I think it was two or three times actually.
Q So the boxes that had been labeled FBI-raided material in
Rancho Mirage ultimately were empty; is that correct?
A I believe so.
Q And then all of the material that you from time to time
carried to Yarrow Point got put into six different boxes,
correct?
A I believe so.
Q And each of those boxes was labeled FBI-raided material?
A I don't remember if all of them were or not. I remember
four of them were.
Q Now, before you began to transport from the six boxes to
Bellevue, your office in Bellevue, had you taken any of the
material out of Yarrow Point or Rancho Mirage to your office
in Bellevue?
A Yes.
Q Okay. So was it from the six -- one or more of the six
boxes?
A Yes.
Q Had the six boxes even been created before you took it to
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your office in Bellevue?
A I tried to keep them in those legal -- I tried to keep
them in those legal boxes.
Q You tried to.
A Yes.
Q And is there a reason why you weren't able to do that?
A I don't understand what your question is.
Q Is there a reason why you weren't able to keep it in the
legal boxes?
A Yes.
Q What was that reason?
A I moved from Yarrow Point to Rancho Mirage.
Q Okay. And did you then have to take the media or that
FBI-seized material out of the box in order to move from
Yarrow Point to Rancho Mirage?
A The packers wanted to put it in their own box.
Q Okay. And who were the packers?
A You mean the name of the company?
Q Yes.
A It was a national company. I don't remember what the
name was.
Q You would have a record of that someplace, though,
wouldn't you?
A Yes.
Q And when did you move from Yarrow Point to Rancho Mirage?
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A I believe it was August or September of '07.
Q And did you understand that you were ordered to maintain
and protect the seized material?
A I -- I don't remember that specifically, but --
Q You don't remember Judge Pro's order along those lines?
A I tried to the best I could.
Q Okay. When the movers put the seized material into their
own boxes as you say they did, did you label the outside of
their boxes to say FBI-raided material or seized material?
A I wasn't there for the move. I don't recall at the
initial part of the packing I was there for.
Q Okay. So you didn't pack up the boxes yourself, you
asked the movers to do that, and you weren't present; is that
correct?
A I was present, I just don't remember if I was present all
the time.
Q Okay. Did you see the electronic media that was --
whatever boxes there were that were left at Yarrow Point, put
into the mover's boxes?
A Well, everything that ended up in Yarrow Point was in
mover's boxes.
Q Now, how much of the electronic media, or the FBI-raided
material, was in the Bellevue office versus what was left at
Yarrow Point that got moved to Rancho Mirage?
A I moved everything when I moved.
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Q Okay. So at some time you had the FBI-raided material
that you labeled in your office in Bellevue, correct?
A Yes.
Q Some of it but maybe not all, or was it all?
A No, I don't think I ever had all of it at any given time,
no.
Q You had also mentioned at sometime, and perhaps I
misheard, that some of the FBI-seized material was put in a
storage unit in Bellevue. Did I mishear you?
A No, that's correct.
Q That is correct.
And why was it put in -- when was it put into a
storage facility?
A Sometime during that stay between the time it was
returned to me and the time that I left. I don't remember.
Q So when you left Yarrow Point, is that what you mean?
A Yes.
Q So did it go from Yarrow Point to the storage facility,
or from the office to the storage facility?
A It would have went from the office, I believe, to the
storage facility.
Q Did it still have its label on it?
A I believe -- I believe so.
Q And then -- so then that's -- so the material you had in
your office in Bellevue and the material in the storage
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facility that each had labels on it then went back to your
home in Yarrow Point at sometime?
A I don't know if all the boxes had labels. I testified
that I believe four of them did. You asked me did all six of
them, and I said I wasn't certain.
Q So when you put it into the six boxes, are you telling
the Court that you didn't label the other two boxes?
A I don't remember if they were labeled or not.
Q So what effort, if any, did you take to segregate the
material and maintain its integrity?
A During what period of time?
Q The period of time when you took the four boxes and made
six boxes.
A I don't know specifically what you're asking me.
Q Whatever did you make to segregate and keep and protect
the integrity of, by labeling or something, the other two
boxes?
MS. KLAR: Objection, your Honor, that assumes
that Mr. Montgomery had some obligation to segregate these
materials. I haven't seen an order that required that he do
that.
MR. PEEK: Your Honor, there's a Judge Pro
order, and I -- if he --
MS. KLAR: My --
MR. PEEK: Go ahead, Ms. Klar, sorry.
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MS. KLAR: My understanding is, is that there is
some order which I've never seen because, as you know, I
wasn't involved in that proceeding.
According to at least counsel for eTreppid,
Mr. Montgomery was required to maintain those materials. But
I'm not aware of any order that says he couldn't integrate
them with the other materials that he had.
MR. PEEK: Your Honor, there's a -- Judge Pro,
when the motion for forensic images was made, issued an order,
and that order -- I believe it's March 27, 28, and I'll try to
locate it at a break --
THE COURT: Was that in the search warrant
proceeding?
MR. PEEK: No, no, it was in this proceeding,
your Honor. You may recall that the FBI on motion by --
excuse me.
I'm trying to think exactly procedurally, your
Honor, what happened on the 41(g), but ultimately Judge Pro
ordered the property -- or you ordered the property returned,
and Judge Pro affirmed your order, then we made a motion in
this proceeding, this consolidated proceeding, to have it -- a
forensic image made of it. Judge Pro denied that request but
ordered that it be photographed and that it be preserved and
protected.
And I believe that order is March -- it was before
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the property was turned over on the 29th.
THE COURT: Just for counsel appearing
telephonically, I'm looking at the docket sheet.
Well, I can't -- I can't recall.
In looking at the docket sheet just quickly, I don't
want to delay the proceedings, but I know that Judge Pro
issued an order concerning the FBI-seized materials that were
returned, but I am not clear on what the language -- what
number the language is and what it said.
MS. KLAR: According to Mr. Peek, it said the
materials need to be preserved and protected. That's not what
his question is asking.
His question is asking what did you do to segregate
it, and I don't think it's a fair question because I don't
think there's any evidence that that was an obligation.
MR. PEEK: Well, the obligation to preserve,
your Honor, would be some method of segregating it so you can
preserve its integrity as opposed to commingling it with other
items. That's what he said he did. That's a clear violation
of Judge Pro's order and clear violation of the duty to -- you
know, the duty to preserve any evidence, otherwise it
constitutes spoliation.
I mean, there's no question about that this was a
subject matter of many disputes, so the fact that even if
there wasn't an order, there is an obligation on the part of a
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party to preserve evidence. This is evidence.
THE COURT: Well, to the extent you're relying
on Judge Pro's order for this line of questioning, I think you
and Ms. Klar can argue about what the subtext of preserve
means. I need to see -- to review the order to really --
MR. PEEK: I'll ask the question a different
way, your Honor.
THE COURT: All right. Thank you.
MR. PEEK: Thank you. I'd just like to move on.
I don't want to spend --
MS. KLAR: Your Honor, I would just state for
the record I'm not aware of any case law that interprets the
word preserved in the manner implied by Mr. Peek.
It is evident that action was taken to preserve the
evidence. I don't think that there's any case law that says
you can't commingle.
THE COURT: All right. Ms. Wells.
MS. WELLS: Your Honor, I believe the order in
question may be 141 in the docket.
THE COURT: Oh, thank you.
MR. PEEK: Thank you. That's why I need my
laptop. May I -- thank you.
(Discussion held off the record.)
THE COURT: Oh, you're speaking of -- well, this
is proposed order 141. Docket 141 is a proposed order.
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MR. PEEK: Yeah, but I -- no, the Court did not
adopt this order, your Honor, because this is one where we
proposed to have it actually forensically copied.
THE COURT: Well, let's go ahead and move on.
MR. PEEK: We'll get it at the break so we can
move on, and I'll ask the question in a different manner.
THE COURT: Thank you. Go ahead, please.
BY MR. PEEK:
Q Did you, when you created these six boxes, label the six
boxes in any way other than -- label the mixed -- label the
other two boxes in any way?
A I don't remember if they were labeled.
Q Okay. Did you put other electronic media inside any of
the six boxes?
A It's possible, yes.
Q Okay. I'm not asking about possibilities. Do you know
whether you did or did not? A simple yes or no.
A I believe I did.
Q Okay. And what other electronic media did you put in
there?
A I don't recall specifically.
Q Okay. And when you moved from Yarrow Point to Rancho
Mirage, did you put other electronic media, or do you know
whether the movers put other electronic media besides the
seized property into their boxes?
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A I believe they did.
Q Okay. Did you observe them to do that?
A I didn't observe them, but I observed the output.
Q So when you got -- when you say the output, you mean when
you unloaded the boxes --
A Yes.
Q -- unpacked the boxes?
A Yes, yes.
Q Now, was there a time when the electronic media was
stored in a closet in Porcupine -- in Ms. Blixeth's estate at
Porcupine Creek?
MS. KLAR: Objection, your Honor, this goes to
the issue of the Flynn declaration. Mr. Flynn, we believe in
violation of the a