by Sharon Rondeau

(Nov. 19, 2022) — Several weeks ago, former government subcontractor Dennis L. Montgomery received a subpoena following the reopening of his 16-year-old civil case against his former business partner, Warren Trepp, and the company they formed in 1998, eTreppid Technologies, LLC.

On August 20, 2022, Lindell filed a Motion to Intervene in the case with the purpose of compelling the court to lift a government-invoked protective order to enable him to defend himself against a lawsuit from Dominion Voting Systems, Inc. His defense in accusing Dominion of malfeasance regarding its voting equipment, Lindell claimed, was based on Montgomery’s having provided information to him last year allegedly collected during the 2020 election.

The protective order, which then-Director of National Intelligence (DNI) John Negroponte claimed was justified and necessary to “national security” under the “State Secrets Privilege,” was invoked over what Judge Philip Pro ruled comprised “the existence or non-existence of any actual or proposed relationship, agreement, connection, contract, transaction, communication or meeting of any kind between any entity in the intelligence community as defined by the National Security Act of 1947, 50 U.S.C. § 401(a)(4), which includes intelligence elements of the military services, or any current or former official, employee or representative thereof (hereinafter collectively referred to as “intelligence agency”) and the Parties” and “any actual or proposed intelligence agency interest in, application of or use of any technology, software or source code owned or claimed by the Parties.”

Montgomery’s 2006 suit claimed copyright infringement of his proprietary software provided to the Department of Defense over the course of eTreppid’s contractual relationship with the agency.

eTreppid was founded in Las Vegas, NV to produce video- and audio-compression technology for the gaming industry. Following the 9/11 attacks on U.S. soil, the DOD learned of the company’s work and entered into a $30 million no-bid contract for technology it anticipated would assist the military in the war on terror.

Shortly after Montgomery abruptly departed eTreppid and sued Trepp, the DOD and eTreppid in January 2006, Trepp counter-sued in Nevada state court. The cases were eventually consolidated and settled in September 2008.

In a Declaration accompanying Lindell’s August 20 Motion to Intervene, Montgomery claimed that technology he invented and covered by the protective order was used in the 2020 elections and that the federal government has failed to pay him “license” fees incurred as a result (p. 8).

In its October 6 response to Lindell’s Motion to Intervene, the Justice Department further maintained that “the Protective Order in this litigation was entered over 15 years ago, pursuant to an assertion of the state secrets privilege over 16 years ago. Just simply looking at a calendar shows that the Order had nothing to do with the 2020 election or alleged fraud therein. Second, neither the Protective Order nor the supporting materials submitted by the United States in seeking it had anything to do with voting, elections administration, or voting machines, whether manufactured by Dominion or any other entity.3

Montgomery’s motion filed Monday (above), which is accompanied by the subpoena and another “Declaration,” asks the court “for an Order restricting and prohibiting the application of the state secrets privilege, the privilege established by 50 U.S.C. § 403-1(i)(1), the protective order entered on August 29, 2007, and the Classified Information Nondisclosure Agreement between Montgomery and the Defense Security Service to prevent the production by Montgomery of information requested by a subpoena issued by Proposed Intervenor Michael J. Lindell and the disclosure of information concerning the surveillance by the United States Government of its citizens, private businesses, and non-profit entities. The grounds for this Motion are set forth in the accompanying Memorandum of Points and Authorities and any oral argument this Court may entertain at the time of hearing.”

Lindell’s subpoena “commands” Montgomery to produce documents and “technology” dating from 2004 to the issuance of the subpoena concerning “the monitoring of or tampering with any election inside or outside the United States” and “The operation of any voting system employed by any federal, state, or local entity for recording, tabulating, or managing votes, voting equipment, or voting records in the 2020 presidential election in the United States,” among other items.

On page 3, Montgomery’s attorneys wrote that “Montgomery has moved for an order restricting the Government’s ability to invoke the various means he has asserted in the past to block his disclosure of information that would embarrass or incriminate the Government officials or agents, allow him to defend against claims asserted by the Internal Revenue Service, and permit him to use his intellectual property.”

As they went on to explain, Lindell’s Motion to Intervene sought “to lift the protective order so that he may use information collected by Montgomery about which the Department of Justice (“the Department”) has asserted cannot be disclosed because of the protective order. The Government has previously acknowledged in this case–and the Court has found–that Montgomery did not possess classified information…”

As noted on page 4 of Montgomery’s November 14 filing, the U.S. Justice Department argued in its October 6 reply that Lindell, who claims to possess a majority of the information Montgomery was allegedly barred from revealing, is not bound by the protective order but that Montgomery remains so.

The government’s maintaining of the protective order, Montgomery’s attorneys claim, constitutes “outrageous government conduct” and “governmental abuse of power.”

In contrast with the government’s claim that Lindell lacks “standing” to request a lifting of the protective order, Montgomery’s attorneys stated, “As an original plaintiff in this proceeding, as the individual expressly bound by the protective order and the NDA, and as a member of Blxware, LLC, a Delaware limited liability company, which is the current owner of the technology in question, Montgomery has standing to seek the relief he requests. Unless the Court grants Montgomery the relief that he requests in his Motion, he will spend substantial time, resources, focus and energy to resolve the conflict between the requirements of the Subpoena and the insistence of the Department that he is bound not to disclose the information compelled by the Subpoena in its view of the state secrets privilege and the requirements of the protective order and his classified information nondisclosure agreement.”

Lindell has publicly vouched for Montgomery’s credibility and skill while claiming that the evidence Montgomery collected via the technology he invented years ago holds the key to the outcome of the 2020 presidential election, which Lindell firmly believes Donald Trump won over Joe Biden.

There is no evidence that eTreppid developed election software or technology, and the company has been defunct for a number of years.

After the Justice Department responded to Lindell’s Motion, Lindell appeared delighted that the government’s position is that he is not a party to the protective order and eager to then release Montgomery’s information. However, in subsequent interviews, Lindell adopted a more measured approach, claiming that “judges” must be presented with the information prior to any public release.

In Monday’s filing, Montgomery states that his company, Blxware, LLC, “is the current owner of the technology in question.” However, on August 21 and later, Lindell claimed to “own” a majority of the technology and associated information through Montgomery’s transfer of the material to “Mike Lindell Management.”

Described as “a Delaware limited liability company” on page 5 of Monday’s brief, Blxware.org, is registered to an address in Naples, FL which Lindell reportedly purchased in July 2021 through a trust. The purchase was made shortly before Lindell hosted his “Cyber Symposium” to reveal Montgomery’s alleged 2020 election evidence, an event much-touted by Lindell for weeks before.

However, on the second day of the conference he declined to keep that pledge, citing a “poison pill” and fears that a “raid” on his equipment and materials might occur.

On his website, Montgomery claimed that acting as a “whistle-blower,” he “could have sold the data and made millions of dollars, but didn’t.”

In June, a criminal case arising from Montgomery’s unpaid gambling debts was dismissed after a settlement was reached after 14 years.

On page 4 of a “Supplemental Declaration” filed November 15, Montgomery states that he disclosed to the Electronic Frontier Foundation (EFF) information purportedly covered by the “state secrets privilege,” according to the Justice Department.

After presenting a history and discussion of the State Secrets Privilege, Montgomery’s attorneys hearkened back to the “March 2006 raids on is residence [sic] and storage units in Reno, which Magistrate Judge Cooke had ruled were unconstitutional searches and seizures.” The lawyers claim that the government’s actions “Denied him (Montgomery) access to his intellectual property and the ability to use that property to generate revenue and thereby forced him into bankruptcy,” which case was heard in 2010.

While emphasizing the raids on Montgomery’s property; two respective raids at as many law firms which represented him; an alleged protracted failure on the part of the government to return his property; and the government’s alleged “unlawful surveillance of U.S. citizens,” there is no mention of election-related software, technology or the government’s wrongdoing associated with voting or elections.

Last year Montgomery filed suit against FBI Special Agent Michael A. West, who led the raids; as well as the IRS and the Justice Department, according to page 6 of his “Supplemental Declaration.”

On pages 12 and 13, Montgomery’s attorneys conclude:

The Court should enter an Order restricting and prohibiting the Government from invoking the state secrets privilege, the protective orders, the privilege pursuant to 50 U.S.C. § 403-1(i)(1), and the classified information nondisclosure agreement executed by Montgomery to prevent him from disclosing information that he is compelled to produce to comply with the Lindell Subpoena and information that relates to surveillance of U.S. citizens, private businesses, and non-profit organizations.

A two-page “Notice of Errata” filed Tuesday asks the court to include the verbiage, “REQUEST FOR ORAL ARGUMENT UNDER LR 78-1” on the November 14 Motion.

A “Supplemental Declaration” Montgomery submitted Tuesday reasserts many of the claims in Monday’s Motion but expressed in the first person rather than the third.

As of press time, Judge Miranda Mai Du, who is presiding over the reopened case, has not responded to Lindell’s or Montgomery’s recent motions.

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