2008-03-10 dennis montgomery declaration (montgomery v etreppid)

8/20/2019 2008-03-10 Dennis Montgomery Declaration (Montgomery v eTreppid)

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Case 3:06-cv-00056-PMP-VPC Document 467 Filed 03/10/08 Page 25 of 32

2

DECLARATION OF DENNIS MONTGOMERY

3 I Dennis Montgomery, declare as follows:

4

1.

I have personal knowledge

of

the facts set forth in this Declaration and,

if

called as a

5 witness, could and would testify competently

to

such facts under oath.

6

2.

I

am

currently a member

of

eTreppid Technologies, LLC ( eTreppid ), and have

7 been since its inception in 1998 under the name Intrepid Teclmologies, LLC.

8

3

As

of

1998, I had twenty-five (25) years

of

experience in computer programming

9 and I had developed thousands

of

programs for various applications, including programs in the

10

fields

of

data compression, pattern recognition, object tracking, and anomaly detection.

11 4.

I

am

aware that eT reppid has requested that I produce copies

of

All DOCUMENTS

12

that contain some or all

of

the full text of each

of

the COPYRIGHTS, in Request No. 3

of

its

13

First Set

of

Requests

...

For Production of Documents ( RFPl ).

14

5. Although the tenn COPYRIGHTS is not defined in RFPl I understand that the

15 reference is

to

Copyright Registration Nos. TXu-98-018, TXu-98-699, TXu-98-727, TXu-98-728,

16

TXu-98-731, TXu-117-868, TXu-119-540. The full text

of

each

of

the COPYRIGHTS consists

17 only of Copyright Registration Certificates, and the limited portions

of

the beginning and end

of

the

18

source code that were deposited with the Copyright Office at the time

of

the applications.

19

6. I have never disclosed the remaining balance

of

the source code that was

20 copyrighted, either publicly or privately.

21 7.

The term source code refers

to

a sequence

of

statements required

to

perfonn the

22 desired function

of

a computer program, written in some human-readable computer programming

23 language. The source code for any one program may be a single file or a collection of numerous

24 files, depending on the size, and needs

of

the particular program. Source code is what a

25

programmer writes his program in.

26

8.

The source code for a program

is

typically converted into an executable file by using

27 a complier and a linker. The compiler first translates the source code into object code, which is a

28

machine-readable binary format consisting solely

of

numbers instead

of

commands.

f

the

2

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I particular program has more than one source code file, then the various object codes produced

by

2 the compiler must

be

linked to produce an executable program file. The source code is the format

3 that is easily readable

by

humans.

4 9. The only source code that I ever gave to eTreppid was the source code in connection

5 with the compression technology contained on CD No. 1

6 10 I am aware that eTreppid has requested that I produce copies of All DOCUMENTS

7 that contain some or all of any material, included in and/or protected by the COPYRIGHTS, that

8 YOU contend Defendants have, either collectively or individually, infringed, in Request No. 4 of

9 its RFPL As I understand it, eTreppid is asking for the software that was derived using some or all

IO

of

my copyrighted source code, include source code, object code, and executable files.

11 11. I am aware that e Treppid has requested that I produce copies of All DOCUMENTS

12 that contain some or all of the full text of each work that YOU contend is a 'derivative work'

of

the

13 COPYRIGHTS, in Request No. 6 of ts RFPI. As I understand it, eTreppid is asking for the

14 software that was derived using some or all

of

my copyrighted source code, include source code,

15 object code, and executable files.

16 12. I am aware that e T reppid has requested that I produce copies of All DOCUMENTS

17 that RELATE TO YOUR contention that Defendants, either collectively or individually, have

18

infringed upon any

of

the COPYRIGHTS in Request No. 8

of

its RFPl. As I understand it,

19 eTreppid is asking for the software that was derived using some or all of my copyrighted source

20 code, include source code, object code, and executable files.

21 13. I am aware that eTreppid has requested that I produce copies

of All

DOCUMENTS

22 that RELATE TO YOUR contention that Defendants, either collectively or individually, have

23 infringed upon any work that YOU contend is a 'derivative work' of the COPYRIGHTS in

24 Request No. 9 of its RFPl. As I understand it, eTreppid is asking for the software that was

25 derived using some or all of

my

copyrighted source code, include source code, object code, and

26 executable files.

27 14. I am aware that eTreppid has requested All DOCUMENTS that RELATE TO

28 eTreppid's technology, products, and/or research and development efforts (including, but not

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1 limited

to:

any and all marketing documents, business plans, PowerPoint presentations, white

2 papers, correspondence, and/or notes

of

meetings with customers or potential customers" in

3 Request No. 16 of its RFP .

If

am required to produce my work product, I would be teaching

4 eTreppid how to make my "trade secrets." If I am required to do this I will have lost all of my work

5

to

eTreppid that I had developed over the last

35

years.

6 15 I am aware that eTreppid has requested "All DOCUMENTS that contain any source

7 code, written by YOU or under YOUR direction, that RELATES TO the fields of data

8 compression, pattern recognition, object tracking or anomaly detection (including, but not limited

9 to: all or any part of a software program or algorithm)" in Request No. 18 of its RFPI and also in

10

Request No. 1 of its second set

of

requests for production of documents ("RFP2"). As I

11

understand it, eTreppid is asking for all source code that I have ever written in the fields

12 mentioned, before, during, and after the time that I provided services to eTreppid.

13

16 To the extent that these requests are asking for source code I have written in the

14

field of data compression through 1998 and then tluough 2005, they are repetitive of what I already

15 provided

to

eTreppid on

CD

No. 1 and the related developments solely in the field of compression

16 technology that I developed at eTreppid between 1998 and 2005. The associated burden to comply

17

with such a request is enormous. The burden regarding a reproduction

of

CD No. 1 is addressed in

18 the separate declaration filed in compliance with the Order filed February 21, 2008.

19 17 To the extent eTreppid is asking for source code in the field of data compression

20 that I have written since 2005 and after I stopped providing services to eTreppid, that is source

21

code that I have maintained as trade secret and eTreppid has never had access to it

22 18 To the extent that eTreppid is asking for all source code that I have ever written in

23 the fields ofpattern recognition, object tracking or anomaly detection, at any time, that is source

24 code that I have maintained as trade secret and eTreppid has never had access to it

25 19 I have consistently taken great care to insure that this source code and my related

26 work product, which is my trade secret, has never been publicly disclosed, and has been maintained

27 properly. f I was required to expose the source code and work product, I would lose all of my

28 intellectual property that I have developed over the last 35 years. I have taken care not to disclose

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I

my

trade secrets to any of the people at eTreppid or the governmental agencies I worked with. I

2 was so concerned about this problem, that I required government officials to confinn that they

3 would make no attempt to take the product from me

4 20. I am aware that eTreppid has requested All DOCUMENTS that RELATE TO any

5 research and development efforts made,

by YOU or by anyone working under YOUR direction, in

6 the fields

of

data compression, object tracking, pattern recognition, or anomaly detection

7 (including, but not limited to: any and all notes, diagrams, laboratory materials, or source code) in

8 Request No. 9

of its RFPI and in Request No. 2 of its RFP2. The only documents that I have

9 relating to

my

research and development efforts are computer related files.

IO

21. I am aware that eTreppid has requested the [e]xecutable versions

of

any and all

software, developed by YOU or by anyone working under YOUR direction, which RELATES TO

2 the fields of data compression, object tracking, pattern recognition, or anomaly detection in

1 3 Request No. 20 of its RFPI and Request No. 3 of its RFP2. These requests call for location,

14 identification, and reconstruction of data that would have to be reconstructed back to the point in

5 time before the FBI raid on my home and storage facility. t would take a very substantial amount

6 of time and cost, to go through the work product that was disorganized, and in some cases

7 destroyed as a result

of

the raid on

my

home and storage facility. Hundreds

of

millions

of

files

8 would have to be reorganized back to the point in time they were constructed. The data would

9 have

to be

copied, and in some cases sent to private laboratories to help in the process of reloading

20 data on older technology because the device that was originally used to record on is either obsolete,

2 missing, or in

my

case seized from me.

22 22. The volume of my work over the last 35 years is enormous. There are hundreds of

23 millions of files that were kept and maintained, in various media fonns, before the illegal raid.

24 Some fonns of this media, require specific devices or software to restore the work

to

a readable

25 format, which are not readily available.

At

least one of these devices, that I kept over time, was

26 seized and never returned to

me by

the FBI. The FBI s mishandling

of

this data and in some cases

27 destruction of the data make it difficult to gather the information necessary to reconstruct the work

28 product to the point in time it was made.

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1 23. I was careful to maintain

my

work product in an organized fashion to insure I could

2 reconstruct

my

work product to the point in time it was developed. From my perspective, the FBI

3 destroyed that organization on March

1

2006 and March 3, 2006, when they ravaged through the

4 containers

of

my

work product located in both my home and storage facility. While some effort

5 may have been made, at least superficially, to keep track ofwhat was searched and seized, the FBI

6 did not seem to take any care to insure that

my

organization was maintained They damaged, and

7 in some cases destroyed

my

property as they conducted their search and seizure, which a federal

8 magistrate and district judge subsequently ruled was illegaL

9 24. On information and

belief

it appears clear that the FBI has taken some

ofmy

l 0 intellectual property and to this day has never returned it. This can

be

shown

by

discrepancies

l 1 between the FBI inventory seizure list and the FBI return lists. There are errors and omissions that

12 have not been explained or resolved to this day. Given the volume

of

files and the fact that I would

13 have to review everything, I am unable to provide a good faith reasonable estimate of the time and

l 4 associated cost that it would take to organize the material back into the condition it was prior to the

l 5 FBI's illegal raid, if it can be done at alL Without knowing exactly what data was kept by the FBI,

16 to the extent it would ever acknowledge that some data was in fact retained, it makes it impossible

17

to ultimately determine

how

the reconstruction

of

the work product can

be

determined.

18

25. To the extent that these requests are asking for object code in the field of data

l 9 compression through l 998 and then through 2005, they are repetitive ofwhat I already provided to

20 eTreppid on CD No. 1 and the related developments solely in the field of compression technology

21 for eTreppid between 1998 and 2005, which include work

by

various past and current eTreppid

22 employees. he associated burden to comply with such a request is enonnous. The burden

23 regarding a reproduction

of

CD No. 1 is addressed in the separate declaration filed in compliance

24 with the Order filed February 21, 2008. The information to reconstruct the compression work done

25 at eTreppid was kept at eT reppid' s servers.

26 26. To the extent that e T reppid is asking for object code in the field

of

data compression

27 that I have written since mid January 2006 and after I stopped providing services to eTreppid,

28 eTreppid has never had access to it.

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27 To the extent that cTreppid

is

asking for all object code that I have ever generated

in

2 the fields of pattern recognition object tracking or anomaly detection eTreppid has never had

3 access to my work product related

to

these areas other than some access to object code that was

4 linked into some

of

the executable files used

on

some government computers.

5

28

I cannot in good faith provide a reasonable estimate

of

the amount

of

time

it

would

6 take

me

to review and produce all of the files requested because among other things I do not have

7

an

independent recollection of exactly what is on the disks that I have maintained over

the

past 25

8 years.

9 I declare under penalty of perjury under the laws of the United States of America that the

l 0 foregoing is true and orre t

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Executed on this

.f1J

day of March

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nn1n :

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ontgomery