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

DECLARATION OF DENNIS MONTGOMERY

I, Dennis Montgomery, declare as follows:

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 eTreppid 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. If the
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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 its 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 Treppid 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 of pattern 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. If 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. 19 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

11 software, developed by YOU or by anyone working under YOUR direction, which RELATES TO
12 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
15 time before the FBI raid on my home and storage facility. It would take a very substantial amount
16 of time and cost, to go through the work product that was disorganized, and in some cases
17 destroyed as a result of the raid on my home and storage facility. Hundreds of millions of files
18 would have to be reorganized back to the point in time they were constructed. The data would
19 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,
21 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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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 of what 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 of my

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 of what 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. The 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 Treppid 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.

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 correct

11

Executed on this

'.f1J- day of March, 20

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ontgomery
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