Rossi v. Darden developments - Part 1

    Document 75.0 has been uploaded to PACER. It is a notice of a hearing requested by IH, over a Rossi response and objection to IH request for production, document 75.1.


    The hearing is scheduled before the Magistrate, December 6, 2016 at 2 PM.


    Aside from some general objections, this stands out in Document 75.1:


    Quote

    3. Defendants’ Instruction No. 9: Plaintiffs object to the time period set forth in Instruction No. 9 on the grounds that any video, photographs, or other responsive documents and/or information which was “created, recorded or fixed in a tangible medium of expression” after the conclusion of the Guaranteed Performance Test is not likely to lead to the discovery of admissible evidence. All of the matters and issues raised by the parties take place before and/or at the conclusion of the Guaranteed Performance Test in February 2016. Accordingly, any photographs and/or recordings taken after that time would be completely irrelevant and impertinent to the instant case, nor could it lead to the discovery of relevant or admissible evidence as the matters complained of had already concluded.


    (We do not have the instructions.)


    Personally, I can imagine how later photography of the Doral Plant could be relevant. In particular, there are issues about the layout of the "customer area" and ventilation of same. Was there removal of "customer equipment"? Yes, that might be protected under some privilege, but ... was there continued surveillance video? Was there removal of evidence that may have been described by Murray? In any case, IH will, I'm sure, advocate for what they need. This was the production request and the specific Rossi response to it.


    Quote

    Request No. 1: All videos, photographs or other recordings of visual images (regardless of the medium on which the recording is stored) created, recorded or fixed in a tangible medium of expression on or after January 2, 1015, of (a) the Doral Location (either of the inside or outside of the Doral Location), (b) some or all of the contents of the Doral Location, (c) any individuals inside the Doral Location, or (d) events or activities occurring at the Doral Location. This Request includes, but is not limited to, all of the “movies” and “photos” referenced by Andrea Rossi in his blog posting of May 1, 2016, a copy of which is attached as Exhibit A.

    Answer: Subject to Plaintiffs objections to the instructions above, Plaintiffs shall make the responsive, non-privileged, documents and/or information available for inspection and copying at the office of the undersigned counsel within fifteen (15) days of the date of this Response. In the alternative, the undersigned counsel will confer with counsel for Defendants and will coordinate to have copies of such responsive documents/information made for Defendants at Defendants’ expense.


    My personal reaction: I would look at this objection and think, "He's hiding something." If there is any possible relevance, I expect the Magistrate will overrule the objection. I looked up the blog post (since we don't have the Exhibit). My emphasis:



    We now know that IH objected to the "GTP and the "ERV," December 4, 2015, from a letter covered in Rossi Request No. 30 in Document 70.3:


    Quote

    REQUEST NO. 30: Any and all documents which support and/or pertain to your claim that “Neither IPH nor IH ‘engaged’ Mr. Penon to serve as the ERV for the Guaranteed Performance process, which is a requirement under Section 5.”, (sic) as stated in the letter of December 4, 2015, which has been attached hereto as Exhibit “A”.

    REQUEST NO. 31: Any and all documents which support your position that “The project on which Leonardo is currently working cannot be the Guaranteed Performance process set forth in the Agreement”, as stated in the letter dated December 4, 2015 attached hereto as Exhibit “A”.

    Document 76 is a ruling by the Judge, rejecting the Rossi arguments in his Motion to Dismiss the Countercomplaint.


    The judge recites the history of the dispute, as she did in accepting four of the Rossi eight counts (and rejecting the other four). These histories each tell the story from the point of view of the plaintiff, assuming that all allegations are true. She is not determining the fact of the allegations, only the legal implications. A Motion to Dismiss is only on points of law: if all the alleged facts are true, and still there is no basis for a claim, it must be dismissed. Otherwise, it stands.


    The judge allowed all IH claims to stand. At one point, she accepts an argument, but only as to a certain redundancy and did not decide to act on it.


    Rossi had moved to dismiss three counts in his final plea in the MTD, but actually argued on four counts. The Judge rejected the motion with respect to all.


    As I recall, that is what I predicted.


    At this point, then, Rossi has, if I am correct, two weeks to Answer the countercomplaint. He has now been buried by piles of paper (or a huge number of files), as a result of his copious requests fro production. Maybe he will find a Wabbit in there.

    Quote from barty

    @Abd Ul-Rahman Lomax: Does Document 75 tell us, that the recorded videos and pictures will be published?


    No. They will be provided to Jones Day. Normally, evidence provided in discovery isn't published, though if there is no claim of confidentiality, it might be. Whatever is introduced at trial -- as a general rule -- becomes public.

    I have claimed here and on e-catworld that if the magistrate is silent on an objection raised by a party to an interrogatory or request for production served, the objection stands, at least pending further resolution. This was just posted on e-catworld. Because there is a legal issue here of possible concern and importance, I'm examining this here.


    http://www.e-catworld.com/2016…age-1/#comment-3004772019


    Fascinating. Yes, a magistrate is a kind of judge, but I did not write that he was not a Judge, but that he is not the Judge. This is Federal District Court, and judges are appointed for life. Judges appoint Magistrates to help with the work load. The authority of Magistrates is limited. It's a small point, but what I wrote was correct, and Ged was wasting space with confusion.


    Now to what is more significant. Above, I linked to specific coverage, from a Rossi request for production, document 70.3. Was this "wrong on all points"? Wow! I don't usually manage to reach that level. If I do, what an opportunity to learn a lot!


    So, first, did I miss something in the Order? Ged is referring to this, 75.0, which I also studied and used to develop my comments. End of page 3, the section covering 70.3.



    Ged seems to think that the last sentence above refers to all other requests. Rather, there is a general agreement to provide documents containing certain search terms. This was, as I mentioned, a drastic reduction from the original request.


    I would not read the Magistrate's decision too tightly. This was a brief hearing, and sometimes the language isn't exactly nailed down. As I wrote on e-catworld, the intention is clear and the attorneys will work it out. What I wrote in the linked comment still stands. Now, Ged also argues law, apparently claiming that if the Magistrate has not specifically confirmed an objection, the party is required to answer. I expect the opposite, that if the party has objected and the objection has not been overruled, the objection stands, and there is no requirement to answer, pending.


    Ge cites https://www.law.cornell.edu/rules/frcp/rule_33 (Rule 33). This only states, on point, that "Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." (And there is a deadline of 30 days for objecting or answering.) If the party objects, it is then outside the scope of this rule. Hence:


    http://federalpracticemanual.org/chapter6/section2 is a Federal Practice Manual cited by Ged. It is lengthy and most of it is irrelevant. From it, however, I derive that a party which has duly objected to a request is not compelled to answer until ordered to do so by the Court, and in this case, the parties agreed to Magistrate jurisdiction over discovery issues. This does not allow frivolous objections, which may be sanctioned, just as a frivolous appeal of a legitimate objection could also be sanctioned. There is no sanction, as far as I can see, for asking a "frivolous question," though it if went too far, I wouldn't count on that!


    I don't notice the Court affirming any objections, per se, and I read this as happening because the objections stand unless overruled. Rather, the Court overrules some objections and partially overrules others, making specific orders where needed. The pleadings are not fully formal. I do not see arguments in the requests for hearings. There is an interrogatory or request, there are objections, so then there is an oral hearing. It is assumed that if a party doesn't wish to answer questions, they simply will not answer them until ordered to do so, provided they have duly objected. That formal objection is required, but that's all.


    There is no sign of an order compelling IH to answer other than the specific issues addressed. Because a number of different questions were asked, there is some overlap. For example, there is a general request for documents containing certain search terms. Request 8 covered "Any and all documents reflecting and/or pertaining to the relationship between IH and the persons/entities listed below ..." So, consider Joseph “Joe” Pike. There is no order affirming Request 8 is to be answered, but IH agreed to answer with respect to a shorter list. However, the final sentence affirms that documents related to a short list of search terms are to be provided. Ged has confused this with the general Request, number 8. IH objections to the general request stand, they were not overruled at all. They reduced the documents to contractual agreements between Industrial Heat and Andrea Rossi, IPH International, B.V., Thomas Darden, John “JT” Vaughn, Fulvio Fabiani or AmpEnergo, Inc.


    If a document connected with Joe Pike and containing the search terms, it would be covered. But not all documents relating Joe Pike and Industrial Heat.


    Of greatest note might be Robert Godes. The Request 8 mention of Robert Godes is under objection, and that stands. However, Godes is covered under Request 4: (from the Order:) "With respect to Barry West, Robert Godes and Brillouin Energy, Defendant will produce communications referencing E-cat, E-cat IP, Rossi, Leonardo and/or Guaranteed Performance (Tr. 71 :22- 72:4)." From 70.3, that request:


    Quote

    REQUEST NO. 4: All documents evidencing any communication(s) by and between you and any of the below-named individuals and/or entities, from January 1, 2011 through the date of production: [list of names]


    Again, the request was reduced, possibly drastically, from the original.


    Ged doesn't appear to know what he is talking about, and he's done this before. He makes unsupported claims, without providing specific evidence, and asserts them with great confidence and contempt for what I've written. I am not an attorney and I can make mistakes, but not generally quite this large!

    Or is it the Rebels? Damn it! Where's my Program?


    Today the 3rd Party Defendants filed Document 77.0


    Quote

    THIRD-PARTY DEFENDANTS’ COMBINED REPLY TO COUNTER-PLAINTIFFS’ RESPONSE IN OPPOSITION TO THIRD-PARTY DEFENDANTS’ MOTION TO DISMISS COUNTS III, IV, AND V OF COUNTER-PLAINTIFFS’
    SECOND AMENDED COUNTERCLAIMS AND THIRD-PARTY CLAIMS


    Sorry about the shouting but I can't be arsed to do other than copy and paste from the document.


    So some explanation here, for others who also lost the Program. Industrial Heat et al, alleged as Nefarious Frauds and sued by Rossi et al, decided that Rossi's Nefarious Plan had been assisted by certain Nefarious characters, whom they countersued. Those characters, wanting not to be arsed to Answer this Countercomplaint, since they are surely blameless and IH is really dumb, filed a Motion to Dismiss (MTD).


    Be grateful, they originally filed together, so there would have been two or more of these thingies, but the judge insisted they Get It Together and save trees and her time. So they did file a joint Motion to Dismiss, as Document 69. Industrial Heat, not taking this lying down, but mobilizing their vast legal resources, filed their Opposition as Document 73, full of boring legal points, which can be summarized efficiently as "Wrong!"


    Now comes the intrepid Johnson, President of Leonardo Corporation and -- completely independent, mind you -- JM Products, Inc, Fulvio Fabiani, who surely didn't do anything but design the computer systems for the Doral plant and who merely forgot to turn his notes over to IH after being paid paltry sum by them, and James A. Bass, who apparently did nothing but smile and look like an engineering manager. Or did he actually engineer that plant or supervise it? -- and they are bearing yet more boring legal arguments, I expect. No attorney in his right mind would present this stuff to a jury and this is why federal judges are reasonably well-paid, they have to put up with it. If this were actually read in court, everyone would fall asleep and the malefactors would steal everyone's wallets and iPhones, and it would be a mess, which is why it is not allowed.


    Will we learn here what actually happened in Doral? No, not soon, other than what dribbles out. This is what will happen.


    You can see an examples of Orders in Document 24.0, the Judge's Order on the Industrial Heat MTD, where she dismissed 4 of 8 original Rossi Counts. In reading that, because she starts with a recital of the case history, Planet Rossi was cheering and proclaiming Victory, Sweet Victory, not realizing that in a Motion to Dismiss the Judge will assume that everything alleged is true, excepting only clear contradiction in the evidence presented by the plaintiff. That recital was to make sure she understood the complaint. She then considered legal arguments, and 4 out of 8 dismissals was very high, MTDs are supposedly quite difficult, because of those presumptions.


    Then Rossi's own MTD was dismissed a few days ago after arguments were presented, 4 for 4. Document 76. The entire IH countercomplaint against Rossi stands, and Rossi now has two weeks to Answer their counter-complaint, though he can ask for more time. Reading Document 76, remember that the Judge has stated the IH case, not her opinion, though in document 24 she provides a hint of what she might do in the future about this "Six Cylinder Unit" flap. Her response to the Rossi MTD also provides clues as to how she might address this one.


    The present document finishes up the pre-ruling argumentation, generally, so the Judge will, within a few weeks, rule, and then, unless the countercomplaints against them are entirely dismissed, these defendants will have two weeks to Answer. In those Answers we may, as the public, start to see some real information from the side other than IH.


    The argument in this Reply begins with:

    Quote

    Counter-Plaintiffs create a script to an exciting sci-fi drama in their Counterclaims and Third-Party Claims but otherwise fail to state a cause of action against Third-Party Defendants.


    OMG, they have forgotten where they are! They think they are in court, presenting their case to a jury. Before I read anything else, from the above, I'm prepared to see, as their response to the IH argument of "Yes, you did!", "No, we didn't! So there!" Or something like that.


    Were I the judge here, I would be holding onto my seat, trying desperately not to think, "Ah! So Stupid!" It is her job to avoid jumping to conclusions, "prejudgment." Sometimes a litigant is really dumb but actually right, and a litigant might have an awful attorney, and judges actually care about justice. Even for stupid people.


    Now, this is just my impression. I have not spent any time in Federal Court, just in lesser courts.


    Maybe there is some cogent argument following. Maybe. True skilled and clear legal argument is a joy. Will we see any?


    The core of one argument that I first see is that Fabiani, and even more Bass, were post-facto to any possible damage. This idea confines damage to the initial move, not to ongoing expenses. The connection with Bass is thinnest. However, the core of that "science fiction story" is that Bass participated in a scheme to make it appear that real power consumption was taking place, as did Johnson and Fabiani. This piece of business is remarkable:


    Quote

    The crux of the scheme alleged by Counter-Plaintiffs is to manipulate the Guaranteed Performance test, which required that the Plant operate at a certain level of efficiency or COP – meaning that the Plant had to generate a certain amount of energy over the energy consumed by the Plant. The amount of power being received and used by JMP is not related and does not allow the inference that the Plant is operating at the requisite COP, only that JMP is receiving the stated amount of energy. Furthermore, Bass’ representation that JMP was satisfied with the steam power being received has no bearing on the performance or efficiency of the Plant, which is what IH was to be testing. The allegedly false statements are in no way, shape, or form deceptive within the ambit of FDUTPA.


    I will short-circuit this, after noting that just about anyone familiar with the issues would recognize this argument as preposterous. However, this is a factual argument, which is not allowed in an MTD. Whether or not JMP's reported power is related to power production and the tort claims is an issue of fact, not of law. If anyone needs an explanation, ask, but this is clear.


    I predict that the MTD will fail, and, listen up! Once the MTD is out of the way, the counterclaim defendants are then fully subject to discovery as parties. I may comment further upon reading over the prior documents.

    Thank you for the update, it is appreciated. Perhaps we will see some real evidence presented in the next few weeks other than this (although seemingly normal) legal posturing. While this has been an interesting drama, I am ready for it to come to a conclusion. A conclusion other than "another new design, another new customer, another new year of development"! :(


    Perhaps the guys at MFMP will hit the correct "notes" and cause a reactor to play "LENR music" in the near future. I applaud their efforts and their transparency. And who knows... as Mr. Lomax states.. "perhaps Rossi will pull a Wabbit"! :D (Not holding by breath though)

    • Official Post

    Thanks Abd, as always.


    Well I just read 77, and could only get through about half. Will read the rest tomorrow. Lots going on right now. Weird defense strategy on the part of Johnson, Fabiani and Bass. Well, maybe not so weird if you have no defense I guess.


    Simply put, they are trying to distance themselves from Rossi, and in particular that July 2014 meeting in NC where Rossi/Johnson said some things that are damning to their defense. They even admit in the very first sentence that they will not address that particular meeting. That tells you something. Sharp judge, and magistrate, so doubtful they will miss the significance.


    Then the third party defendants try and describe, however superficially, that Doral was the GPT. I almost get the impression they are trying to keep that in play as an option...just in case Rossi wins this thing, while they are poising to jump ship. Guess the ever so slight possibility of a big payday still weighs heavily on their minds, along with their lawyers? Waste of time IMO, but never hurts to try and have it both ways.


    After Johnson, Fabiani, Bass exhaust all legally reasonable options, and the dire consequences of their actions hits home, I suspect some, or all 3, will turn on Rossi to save themselves.

    Quote from Shane

    Thanks Abd, as always. Well I just read 77, and could only get through about half. Will read the rest tomorrow. Lots going on right now. Weird defense strategy on the part of Johnson, Fabiani and Bass. Well, maybe not so weird if you have no defense I guess.Simply put, they are trying to distance themselves from Rossi, and in particular that July 2014 meeting in NC where Rossi/Johnson said some things that are damning to their defense. They even admit in the very first sentence that they will not address that particular meeting. That tells you something. Sharp judge, and magistrate, so doubtful they will miss the significance.Then the third party defendants try and describe, however superficially, that Doral was the GPT. I almost get the impression they are trying to keep that in play as an option...just in case Rossi wins this thing, while they are poising to jump ship. Guess the ever so slight possibility of a big payday still weighs heavily on their minds, along with their lawyers? Waste of time IMO, but never hurts to try and have it both ways.After Johnson, Fabiani, Bass exhaust all legally reasonable options, and the dire consequences of their actions hits home, I suspect some, or all 3, will turn on Rossi to save themselves.


    Shane I think you are spot on here. The matter of their respective culpability is fascinating, and not one that can be easily resolved from the outside, though guessing is cheap. Rossi has (do we believe?) his funding from elsewhere so I guess will survive this debacle. It will be a very long time (probably never) before there is any evidence of his culpabilities strong enough to dislodge the pro-Rossi memes floating around - and that is all he needs, a meme or two...

    This document further convinces me that everyone on "team Rossi" is abiding by an overall strategy to wait until the very end of the whole process to reveal their "wabbits." Literally, I think they want to have (completely figuratively speaking and not literally) the noose being made and on the way to the gallows before dropping evidence refuting at least some of IH's most harsh accusations: such as no customer, no manufacturing process, no connection to Johnson Matthey, no excess heat, no real "work" for James A. Bass to perform (because he was performing the job of an actor), etc. I'm not sure how large or significant their "wabbit" will be, but they are obviously intentionally keeping him in a cage somewhere, locked away.


    I can only hope that they are using this time to feed him lots of carrots.

    Quote from MrSelfSustain

    This document further convinces me that everyone on "team Rossi" is abiding by an overall strategy to wait until the very end of the whole process to reveal their "wabbits." Literally, I think they want to have (completely figuratively speaking and not literally) the noose being made and on the way to the gallows before dropping evidence refuting at least some of IH's most harsh accusations


    Why would they do that? This is costing them a great deal of money, and surely it must worry them and their families. If they can make the case go away by revealing information, why don't they do that now?


    What you say makes no sense. People do not subject themselves to large expenses and the danger of losing millions of dollars for no reason, when they can easily put a stop to it. Why on earth do you think they would do this?

    • Official Post

    MrSS,


    If Rossi/Penon have a wabbit to pull out of their hat, they better do it soon. :) After reading all of document 77, I get the impression that the Third Party defendants (Johnson/Fabiani/Bass) are stalling for time to see if there is such a wabbit also. By the looks of it, they need it. If no such creature emerges, they will throw Rossi under the bus probably...as they have positioned themselves to do in 77.


    Two days ago Rossi said this on his JONP:


    Andrea Rossi
    November 17, 2016 at 8:02 AM
    Mario Lemieux:
    I cannot talk of issues related to the litigation, but I can say that we have collected solid evidence that all we say is the truth, therefore I am satisfied of how things are going on.
    Warm Regards,
    A.R.


    So he is claiming here to have that wabbit. We shall see.


    BTW, did you read the court's, or Judges, well written, and reasoned, response on the case in Document 76? Abd wrote of it, but worth the read anyways. Anyone here still confused about Rossi vs IH, IH vs Rossi, should give it 30 minutes, and they will be up on everything they need to know. Reduces the legal issues down to the bare, understandable, essentials.

    I think that they haven't pulled a Wabbit out of the hat is because all they have is a hat full of Wabbit droppings.
    I would expect at least they would produce and document something that actually said that the GPT was agreed to or
    that a time extension for starting such a test was agreed to.


    Just that one thing would drastically change the trajectory of the case and then the focus could be on data collection,
    if it true worked or not, the reality of customer and proof of consumption of the levels claimed and so on.


    And then I will be interesting when the open up that shipping container for discovery. My guess is that it has a lot of
    Wabbit droppings on the floor but no Wabbits.

    • Official Post

    Abd has emailed me to complain that he has been treated unfairly and that his 'block' is still in place. He will not be back. For clarities' sake I should say that according to my screen, his block expired 10 hours ago. He has set up a new blog to carry on the law practice and to let the world know LENR Forum is a horrid place.


    You can read about it here.


    http://coldfusioncommunity.net/hello-world/#comment-25


    .

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