Lindell, Montgomery Motions Denied in Protective-Order Case

by Sharon Rondeau

(Aug. 9, 2023) — After its filing a year ago, a Motion to Intervene submitted by MyPillow CEO Mike Lindell in a long-settled case by which he sought a court order allowing him to release information regarding the 2020 election has been denied by Chief Judge Miranda M. Du of the U.S. District Court for the District of Nevada.

On August 20, 2022, Lindell moved to intervene in and therefore reopen a 2006 case between former government subcontractor Dennis Montgomery and his estranged business partner, Warren Trepp, settled in 2008. Specifically, Lindell asked the court to lift a 15-year-old protective order imposed on key parties by the judge then presiding over the Montgomery/Trepp dispute at the request of then-Director of National Intelligence (DNI) John Negroponte.

Such an order, Negroponte wrote in a filing to the court, was necessary to safeguard “national security” under the “State Secrets Privilege.”

In granting Negroponte’s request, Judge Philip M. Pro wrote, in part:

The Parties shall not discuss, mention, question or introduce as evidence, either at trial, in any pleading or motion, or in any case-related correspondence, any actual or proposed relationship, agreement, connection, contract, transaction, communication or meeting of any kind between any intelligence agency and any of the Parties.

In 1998 Montgomery and Trepp founded eTreppid Technologies to offer data-compression and pattern-recognition software to the casino industry. Following the 9/11 attacks, the company attracted the attention of the U.S. Defense Department and was given a $30 million, no-bid contract to provide technology toward fighting the War on Terror.

A condition of the contract was for Montgomery, Trepp and others involved to sign non-disclosure agreements (NDAs).

Lindell has identified Montgomery as the source of information he claims will show the manner in which the 2020 election was “stolen” from then-incumbent Donald J. Trump. Lindell’s disclosure of the data in what he said consists of 32 terrabytes of “PCAPS” (packet captures) was scheduled to occur on the final day of his August 2021 “Cyber Symposium,” but at the last minute he announced a “poison pill” had been inserted into the data, thereby precluding its release.

Two experts who attended the symposium and were admitted to the exhibition room to view a portion of the data reported they saw no “PCAPS,” which Montgomery claimed to have gathered in real time as the soon-to-be contentious 2020 election unfolded. Afterward, a third analyst in attendance sued Lindell for the $5 million award Lindell pledged to anyone who could “prove” the data on display was not related to the 2020 election, with an arbitration panel ruling in the plaintiff’s favor in April.

Lindell is relying on Montgomery’s data to defend against a defamation lawsuit he faces from Dominion Voting Systems, Inc.; a second similar action was filed by voting machine company Smartmatic and is also proceeding.

Montgomery, who claimed in his own declaration to the court last year that the government has abused his rights, a finding with which a federal magistrate agreed, has received subpoenas for documents and/or depositions in both the Dominion and Smartmatic cases. In recent filings, Montgomery argued the protective order should be lifted to allow him to comply with the subpoenas.

It is only since his association with Lindell, which began in early 2021, that Montgomery has claimed to have developed technology utilized in U.S. elections.

The government, for its part, responded to Lindell and Montgomery’s motions by denying the protective order encompasses anything election-related. “Put very simply,” U.S. Justice Department attorneys Brian M. Boynton, Anthony J. Coppolino and James R. Powers wrote, “the Protective Order entered in this case has nothing to do with the defamation litigation against Lindell: the Protective Order does not apply to any litigation but the above-captioned cases in which it was entered; no party or prior party to this litigation is a party to the defamation lawsuit; and neither this litigation nor the United States’ motion for protective order have anything at all to do with voting, elections administration, or Dominion.”

“Non-party and proposed intervenor Michael J. Lindell filed a motion to intervene and lift the Court’s protective order (ECF No. 1216)¹ in this closed case² because the information he needs to defend himself in an unrelated District of Columbia defamation case may be covered by the protective order (ECF No. 253),” Du began her August 4 order denying Lindell’s motion. “Plaintiff Dennis Montgomery, who was subpoenaed in the defamation case, subsequently filed a motion to restrict application of the state secrets privilege (ECF No. 1236)³ because the information he is compelled to produce under the subpoena may be covered by the protective order. Before the Court are the Reports and Recommendations (“R&Rs”) of United States Magistrate Judge Craig S. Denney (ECF Nos. 1254, 1255), recommending that the Court deny both motions. Montgomery⁴ objected to Judge Denney’s second R&R.⁵ (ECF No. 1256 (“Objection”).) Because the Court agrees with Judge Denney’s analysis, and for the reasons stated below, the Court will adopt Judge Denney’s R&Rs in full, overrule Montgomery’s Objection, and deny both motions.⁶“

“ECF” signifies filings, orders and other documents associated with a federal case which can be found on pacer.gov.

According to the website of the U.S. District Court for the Southern District of New York, a “Report and Recommendation” is defined as:

Sometimes, a district judge will refer the case to the Magistrate Judge for “dispositive motions,” which means motions such as motions to dismiss and motions for summary judgment. The Magistrate Judge will review the motion and issue a Report and Recommendation to the District Judge to advise the District Judge what should happen with the motion. The parties then have the opportunity to oppose in writing the U.S. Magistrate Judge’s Report and Recommendation. After the district judge considers the parties’ opposition papers and the U.S. Magistrate Judge’s Report and Recommendation, the district judge will issue a decision. This decision is the final decision on the matter at the district court. A party who disagrees with the district judge’s decision may appeal the decision to the United States Court of Appeals for the Second Circuit.

As Du wrote, in May Denney recommended against the court’s granting of Montgomery’s motion to “enter an order restricting and prohibiting the United States from invoking the state secrets privilege, the protective order, the privilege under 50 U.S.C. § 403-1(i)(1), and the NDA to prevent him from disclosing information he is compelled to produce to comply with the Lindell subpoena and information that relates to surveillance of United States citizens, private businesses, and non-profit organizations. (ECF No. 1236.)”

Denney contended that the Nevada court “lacks jurisdiction” in granting Montgomery the relief he sought and that the “outrageous government conduct” Montgomery claimed existed was not applicable since the case was civil and not criminal.

Du further found Lindell to lack “standing” to intervene and an “injury in fact” due to the protective order.

Along with adopting Denney’s position that Montgomery’s objections to the “R&R” “because an order repeating what is already apparent from the protective order is unnecessary,” Du wrote that “Montgomery’s requested relief is wholly unrelated to the protective order.¹⁵ The protective order pertains to the disclosure or discovery of sensitive information that may jeopardize national security.¹⁶ (ECF Nos. 253, 1243 at 4-5.) However, Montgomery’s requested relief is broadly premised on the government’s “unlawful surveillance of U.S. citizens” and past “outrageous treatment of Montgomery” including raiding his home and storage units, threatening him with arrest, and seizing records from his attorneys. (ECF No. 1236 at 9, 11-13.) The connection between the terms of the protective order and Montgomery’s basis for his requested relief is non-existent or tenuous at best. Accordingly, Montgomery may not attempt to obtain unrelated relief in a dormant lawsuit that was resolved over 14 years ago. (ECF No. 962.)”

Contrary to Montgomery’s claims, “…there is no indication or evidence that the United States will take any action against Montgomery for complying with Lindell’s subpoena in the unrelated defamation case,” Du wrote on page 6.

Next week Lindell will be holding a third conference with the purpose of revealing “a plan” which he said will “secure our election platforms.”

The event will be livestreamed on his “Frankspeech” website.

“This is such a perfect plan,” Lindell wrote, “the only way it fails is if we do not get the word out to the entire country, and why I am spreading the word across our nation. It is critical you get this information.”