David Whitaker has filed a motion to dismiss the V.I. government’s lawsuit alleging his cybersecurity company, Mon Ethos Pro Support, breached its contract with the VIPD and is holding sensitive equipment and data hostage over payment by the police department of $479,795.
The Justice Department filed its complaint on Friday in V.I. Superior Court along with a motion for a temporary restraining order and preliminary and permanent injunction. It alleges that Mon Ethos is refusing to return equipment it was loaned under its contract with the VIPD, which is due to expire on Sept. 30, including a GrayKey — an item that lets police hack into mobile devices and retrieve encrypted information.
Judge Carol Thomas-Jacobs issued an order on Tuesday for the government to produce the contract between Mon Ethos and the V.I. Police Department, which it failed to include with its exhibits filed on Friday.
“Although the Government refers extensively in its complaint and motion to the contract between the Government and Mon Ethos, it did not attach a copy of the contract as an exhibit to its motion. The Court has to ensure that it has the core documents and reliable evidence before exercising its discretion whether to grant or not grant a temporary restraining order,” Thomas-Jacobs wrote.
Whitaker did include the contract as an exhibit in his motion to dismiss, alleging it wasn’t among the government’s exhibits because “the text of the agreement itself indicates that the Plaintiff’s claims regarding the alleged breaches by the Defendants are void as a matter of law.”
In short, Whitaker said he has not violated the contract because any equipment loaned to him for his work with the VIPD for investigative support services, data discovery and forensic analysis doesn’t have to be returned until the contract expires on Sept. 30. There’s also no allegation that Mon Ethos has failed to perform the work, he said.
“The Complaint does not allege that the Contract has been terminated, and therefore any of the information and forensics performed by MEPSVI continues to [be] the property of MEPSVI and not the Plaintiff,” Whitaker’s motion states.
According to the government’s complaint, that property includes iPads, Facebook portals, iPhones, Max West Nitro tablets, Qlink Wireless tablets, laptops, Motorola cellphones, Android Moto G phones with cases, and the GrayKey that is used to extract encrypted data from mobile devices. According to the court filings, the VIPD began asking for its return in late June after the FBI announced that Police Commissioner Ray Martinez and Office of Management and Budget Director Jenifer O’Neal were the targets of a federal investigation regarding the contract with Mon Ethos. Within days, both officials had resigned.
Moreover, Whitaker denies the government allegation that he threatened to destroy sensitive information critical to serious court cases.
“Even if the Contract imposed a duty upon MEPSVI to safeguard data or property for the Plaintiff (it does not), there is no allegation that MEPSVI has failed to safeguard data or property. The Complaint only alleges that the Defendants ‘utilized the threat’ of data deletion in a financial dispute. It does not allege that any data has been deleted, or that any property has been destroyed,” the motion states.
Further, it was the VIPD itself that “predicated the return of the property on the payment of invoices, not MEPSVI,” it says.
“The Complaint does not allege that there is any ambiguity regarding the Contract between the parties,” according to Whitaker, who hinted that more filings will be coming.
“Furthermore, the Defendant has not (yet) filed any claim with respect to any unpaid invoices. If and when such claim is filed, there will be a justiciable controversy regarding such payments, and this Court will adjudicate such controversy.”
