Rossi v. IH Case: Protective Order Issued, Judge Strikes, Upholds Affirmative Defenses

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Now if the judge comes out in favor of Rossi, it will be interesting to see what the commentary of the uber skeptics such as Mary Yugo will be!

That, naturally, depends on the grounds for the ruling. If it's that the court has been persuaded that the ecat works, it still requires proper testing for that determination to be accepted. That may or may not happen in experiments performed with court oversight/jurisdiction. A lot of paid experts lie or are incompetent.

If it's purely on legal technicalities, it's worthless on its face.

So, no. A court ruling, in and of itself, that the ecat works isn't worth much unless it's clearly based on rigorous, high quality and persuasive testing. Why would it be? Explain it to me please. How are lawyers competent to judge a technological claim?

Quote from JedRothwell

More to the point, if there was production, why haven't Rossi's lawyers filed some proof of it? Invoices and payment records would do. They do not need to reveal any industrial secrets. For that matter, if Exhibit 5 is a pack of lies, as some people here claim, why didn't Penon dispute it? Why haven't Rossi's lawyers said it is a lie? It is the same story as the invisible chimney which some people talk about here. If it is there, Rossi's lawyers need only point to it and provide a photo to win the case. Why haven't they?

While I can see what Jed sees, this is all circumstantial. There is this problem: Rossi has not yet Answered the Counter-Complaint. So far, Rossi pleadings on these matters have only been on technical and legal grounds. The place where they would assert evidence and new argument would be in their Answer, which they have not filed yet. The Motion to Dismiss -- now resolved -- tolled the time for Answer, plus Rossi can ask for additional time if needed.

(Remember how radically the picture of Rossi v. Darden changed when Darden actually filed the Answer with all those Exhibits.)

We can speculate that he has not Answered because he can't. However, this is just that, speculation, and is at this point legally irrelevant. Were I Rossi's attorney, I would not jump to Answer before I had all the i's dotted and the t's crossed. Rossi is up against highly skilled lawyers.

Right now, as the evidence stands, he looks really bad. However, this may only be temporary. If he has no answer, he's screwed, blued, and tattooed. However, if he can answer plausibly, he might still, then, be able to negotiate agreements in Europe, for example, and rescue his ass, even if Rossi v. Darden goes down in flames -- because of all the obvious technical problems that I doubt he can counter. For all I know, his attorney may be trying out responses with focus groups or consulting more broadly, perhaps with the new attorneys. That takes time.

Quote from Bob

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I have seen one of the two "prophecies" so far, with the non-disclosures now in place. I am sure that everything about this case will be confidential according to Rossi.
Such as whether there really was a UK customer involved. Whether there really was any production involved. Whether there really was access by IH
engineers. He will will want this all to be kept under wraps so he can continue this drama with his supporters. Unless a judge comes out and states :
"This was all fraud, no customer, no production, etc. etc." there will continue to be a core group of people who believe there is a major conspiracy to
cover up LENR and particularly Rossi.

There will be a smaller group that will continue to believe that even if the judge dismisses Rossi's case and makes that statement. They will say something
like "this proves the courts are corrupt and in the pocket of big oil!".

Now if the judge comes out in favor of Rossi, it will be interesting to see what the commentary of the uber skeptics such as Mary Yugo will be!

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There is a fundamental misunderstanding of the legal process here. The judge is not going to do any of those things. This is not what judges do, unless they are tasked with deciding fact, and Rossi requested a jury trial, so fact will be decided by a jury, with the judge only deciding points of law. There can be an exception: where fact is clear and uncontroverted from the pleadings and discovery, in which case a judge could decide that there is point presenting the case to a jury, it is open and shut.

If the case is resolved by agreement of the parties (i.e,. "settled,") then what happens depends on what the parties agree upon. I would find speculating on this to be too risky at this point. I doubt, though, that IH is going to go for anything less than recovery of their expenses. Rossi may have succeeded in pissing them off. That can be expensive. Right now, I expect to see much or most -- or all -- of the Rossi case blown away in fairly short order. The countersuit is much less clear, and the positions of Johnson, Penon, and Fabiani are different. Penon may remain, more or less, a fugitive (assuming that IH has actually attempted service of process in Italy or wherever Penon is). IH claims against Penon might be substantial.

Quote from oldguy

Rossi et al have yet to show some proof of GPT acceptance. It seems if they don't do that one simple thing then the game is over.

You noticed. The place where they would do that is in their Reply to the IH Answer.

Quote from Abd Ul-Rahman Lomax

[quote='Bob','https://www.lenr-forum.com/forum/index.php/Thread/4430-Rossi-v-IH-Case-Protective-Order-Issued-Judge-Strikes-Upholds-Affirmative-Defens/?postID=39179#post39179'][...]

There is a fundamental misunderstanding of the legal process here. The judge is not going to do any of those things. This is not what judges do......

Yes, that is my understanding. I did not present my thought very clearly.

The thread is about non-disclosure being granted. My point was that everything "Rossi" is always under NDA. He is always saying he cannot say who a customer is because of a NDA, etc. It is actually HIS demand for NDA's in my opinion, not so much any customers. (If there are any actual customers) NDA's are Rossi's best friend.

Now that there seems to be a tool to keep everything under NDA, I believe he will settle out of court before the end of the year. My statements about what the judge says was not to imply that the judge would actually say these things, but an implication that Rossi can come out of this with his supporters still thinking he is without blame! simply because the judge will probably NOT make any statement about the case.

It is my understanding that the judge could (and may) throw out the case due to it's own lack of merit. Unless the judge really publicly states why the case was thrown out (which I am not saying they would release this statement) that the Rossi fan base would use the action to flame the conspiracy theory that the courts were "bought off". So Rossi still comes out a winner in his follower's eyes.

If he settles out of court and with NDA's in place, (meaning EVERYTHING under NDA) he can make a simple post on JONP stating.. " I cannot make any statements due to the NDA's that were forced into place. It is not my fault that I cannot make statements". HIs followers will take the bait, hook, line and sinker. He might even state that "I am satisfied with the outcome" or "we must concentrate on making production and leave this suit behind." and he and his followers will be right back in the same situation as 2011.

My statement about "even if the judge did make a statement" was not stating the judge would, but a reflection that even if a formal judgment was published, there would still be a core group that would deny that judgment as fair and state the courts were in the pocket of big oil or some like.

Unless IH pursues the counter suit, Rossi has $10 million dollars. He can keep this drama going a long, long, long time and many will still support him. So only the IH counter suit will have the potential to really discredit Rossi. If he settles and keeps the $10 million, all under NDA, he continues on as he has been. If IH pursues the counter suit and takes the $10 million back, it might stop him due to lack of money.

Quote from Bob

The thread is about non-disclosure being granted.

Technically about the parties being able to label material they disclose as being confidential, i.e., not to be disclosed to the public, or for "attorney's eyes" only to attorneys, i.e., officers of the court (even though paid by clients).

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My point was that everything "Rossi" is always under NDA. He is always saying he cannot say who a customer is because of a NDA, etc. It is actually HIS demand for NDA's in my opinion, not so much any customers. (If there are any actual customers) NDA's are Rossi's best friend.

Rossi does sometimes claim he cannot disclose something because of an NDA, though I wouldn't call this "always." More often, he simply keeps matters confidential, except for what he chooses to disclose or assert. IH did have a requirement that Rossi keep the relationship confidential, and now claims that he violated this.

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Now that there seems to be a tool to keep everything under NDA, I believe he will settle out of court before the end of the year.

This appears, to me, to confuse two distinct processes. Settlement process is always highly confidential. Mediation is confidential. The Protective Order does not "keep everything under NDA," only designated documents. The Protective Order makes it easier for all parties to disclose full information without making specific requests for confidentiality to the court, which would slow down discovery process. As the facts become more and more clear, to those in possession of full information (the attorneys!), the outlines of a possible settlement may appear. Further, whatever is disclosed may be used in court, by either side, and if a protective order applies, then there are precautions that are taken (I am not familiar with them.) The purpose of court process is justice and equity, not "informing the public of whatever the public might want to know."

Discovery is already confidential in that what is revealed in discovery is not made public. However, parties might choose to disclose what they are shown. What is to stop this, if this could harm a party? We already expected that much would be revealed in discovery that we would not see as the public. The Protective Order merely creates an efficient process for what was already a right of the parties, i.e., to request of the court. It avoids creating more paper for each request. I see no connection with settling or not settling. Rossi may have substantial reasons to settle, and his attorneys may be pushing him in this direction, but it is unclear what the IH response would be.

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My statements about what the judge says was not to imply that the judge would actually say these things, but an implication that Rossi can come out of this with his supporters still thinking he is without blame! simply because the judge will probably NOT make any statement about the case.

Yet this has been obvious from day one. And what the judge says would not change that, in fact, because supporters could simply believe that the judge was prejudiced or corrupt.

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It is my understanding that the judge could (and may) throw out the case due to it's own lack of merit.

It is a real possibility. If so, you can be sure that there would be a formal statement. I do not expect that the judge would do this sua sponte, but would respond to a Motion for Judgment on the Pleadings or Summary Judgement (which can, if I am correct, bring in more established fact). Rossi would be allowed to respond and argue against that. The reasoning for the decision will be public. The reasons for the decisions the other day are public record, they are merely not available through PACER; the reasons were given in open court.

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Unless the judge really publicly states why the case was thrown out (which I am not saying they would release this statement) that the Rossi fan base would use the action to flame the conspiracy theory that the courts were "bought off". So Rossi still comes out a winner in his follower's eyes.

And why should we care what a collection of conspiracy theorists think? However, the judge is not going to dismiss the case without giving cause; the issue will have been debated before decision, and can be appealed. A decision with no basis would almost automatically win an appeal, isn't that obvious? This simply does not happen.

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If he settles out of court and with NDA's in place, (meaning EVERYTHING under NDA) he can make a simple post on JONP stating.. " I cannot make any statements due to the NDA's that were forced into place. It is not my fault that I cannot make statements". HIs followers will take the bait, hook, line and sinker. He might even state that "I am satisfied with the outcome" or "we must concentrate on making production and leave this suit behind." and he and his followers will be right back in the same situation as 2011.

Bob, are you somehow "against" Rossi? Yes, he could say that -- and would, very likely. So? What do you want? Tongs to extract Wrong Ideas from the minds of Believers? Those who are "back in the same situation as 2011" would only be those who ignore clear evidence. And there is plenty of that, now. So if Rossi Says (TM) "The Market must decide," we smile and say, "Yes."

The naive "believers" would be ignoring the ample evidence introduced in the case already. A great deal is now public knowledge that was private before. The Cat is out of the bag, and can't be stuffed back in.

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My statement about "even if the judge did make a statement" was not stating the judge would, but a reflection that even if a formal judgment was published, there would still be a core group that would deny that judgment as fair and state the courts were in the pocket of big oil or some like.

If the case is taken up by a state or federal prosecutor and Rossi is found guilty of criminal fraud, and goes to jail, they will still make that claim. So? What is the purpose of pointing this out? How does it matter?

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Unless IH pursues the counter suit, Rossi has $10 million dollars.

Yes, or what is left of it, and IH has a License, basically to everything Rossi -- in this energy production area --, a hedge; they are now free to ignore Rossi unless he shows something truly interesting. And if they want their money back, they can ask for it, even demand it.

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He can keep this drama going a long, long, long time and many will still support him.

It can be expected that there will be Rossi supporters long after he dies. Consider John_Ernst_Worrell_Keely

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So only the IH counter suit will have the potential to really discredit Rossi.

Not really. This will be decided on the preponderance of the evidence, not proof beyond a shadow of doubt. A criminal prosecution would be more definitive, but even with that, supporters will allege conspiracy to suppress free energy technology.

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If he settles and keeps the $10 million, all under NDA, he continues on as he has been. If IH pursues the counter suit and takes the $10 million back, it might stop him due to lack of money.

In the email proposing the Doral installation, Rossi gave the cost of construction of a 1 MW plant at $200,000. However, "1 MW" was Rossi's grandiose plan (and it could be argued, a way to create difficulty in independent testing, as distinct from making individual devices to run 10-20 kW.) If Rossi actually knows how to make devices that work reliably -- "reliability" is the true and fundamental issue, in addition to reality -- he needs little money; and he could find partners, almost no matter what. Only some event that completely demolishes all possibility of any of the Rossi results being real could stop this. It's hard to imagine this happening, but, suppose that Rossi kept a diary and it is found, wherein he details all the fraudulent methods used. Would that stop him? No, he could simply declare that this was a joke, a bit of fun he had. Like, heh! heh! "Johnson Matthew platinum sponges." Whatever happened to people's sense of humor?

Industrial Heat (and Cherokee) are paying the bills for Jones Day, and it is up to them how they see their own interests. I think they will consider broader social interests, but they simply don't look vindictive to me. They were very, very slow to complain about outrageous Rossi behavior. They only have done with Rossi v. Darden what was necessary for an effective legal response. Contrary to the suspicions of Planet Rossi, there is no anti-Rossi campaign funded by IH, with or without APCO.

Rossi is paranoid, or lying, or both. Just the way it is.

Quote from Paradigmnoia

oldguy wrote:

Rossi did, interestingly, supply a date for the GPT agreement in the original complaint.
January 28, 2015.

and then an image was shown. This would be better, the text:

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65. Accordingly, on January 28,2015, the ERV prepared and submitted to the parties a proposed test protocol for the Guaranteed Performance Test. After suggesting minor changes to the test protocol, and clarifying other points, DARDEN on behalf of IH andlor IPH agreed to the test protocol prior to the commencement of the Guaranteed Performance Test.
66. Under the supervision of the ERV, the Guaranteed Performance Test was commenced on or about February 19, 2015, after the ERV had performed a thorough inspection of the E-Cat Unit and installed his monitoring equipment therein.

it can be seen in the complaint that in a series of paragraphs, Rossi describes events as being about the "Guaranteed Performance Test," but the documents we have seen from the time do not mention the GPT or even a "test." I.e., the Rossi email proposing the Doral installation, and the Terms Sheet. A written agreement to the start date of the GPT, signed by all parties, was an explcit requirement of the Second Amendement that allowed postponement. That written agreement would be crucial evidence. It likely does not exist. So Rossi attempts to establish estoppel, without explicitly claiming that is what he's doing. He basically ignores the requirement for a writing, then asserts that the "ERV" -- i.e., Penon -- document of January 28, 2015, was a "proposed test protocol for the Guaranteed Performance Test." Did it say that? Or was it as with the other documents, something else was done that was later called preparing for a GPT? I.e., it is at this point a reasonable surmise that Penon proposed a method of measuring plant power, with no mentiion of "GPT."

Even en explicit mention of GPT, though, might not be enough to establish estoppel on such a critical element, without at least supporting evidence that the IH intention was to accept this as a GPT, which I find almost unconceivable. So far, there is no clue that Rossi mentioned "test" until later, when he was refusing entry to Murray, the IH engineer.

On those paragraphs in the Complaint, IH Answers:

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65. Defendants deny the allegations in Paragraph 65.
66. Defendants deny that the test referenced in Paragraph 66 was the Guaranteed Performance to be performed under the License Agreement. Defendants lack sufficient knowledge or information to admit or deny that Penon performed a thorough inspection of or installed his monitoring equipment on the Plant on February 19, 2015. Defendants deny the remaining allegations in Paragraph 66.

While there would be conceivable IH conduct that would create estoppel, if the situation is as it currently appears from evidence, Rossi set up a power installation in Florida, with features designed to make it look like a GPT, including using Penon to measure power. However, it would not become a GPT without explicit consent, preferably formally with a writing as required, but at least with other explicit acceptance. Rossi apparently avoided that. He can still save the day, if he has the evidence needed. When he files his Reply to the IH Answer, I believe he can attach evidence, and it would be a copy of that Penon mail. What did it actually say? Rossi does not quote it but describes it, with what may be conclusory language.

Quote from JedRothwell

I believe that if comes to a trial, everything now secret that is used in the trial must be revealed. The NDA only works during the discovery phase.

It is not an NDA, it is a Protective Order that can be invoked by parties in discovery.

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Every word of the trial, and ever exhibit in it are the public record. I know little about this, so I could be wrong.

The Protective Order only applies to Discovery. There is a nifty booklet on protective orders: http://www.fjc.gov/public/pdf.nsf/lookup/confidentialdisc.pdf/$file/confidentialdisc.pdf

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Although a strong presumption of public access applies to evidence admitted at trial or considered by the court to decide the merits of a case, parties now undertake discovery away from the court. Experience has proved confidentiality protective orders to grease the wheels of discovery in many cases. Parties are often more willing to produce requested discovery when they know that such production does not necessarily make the information public.

If information subject to a protective order is filed with the court, such as attached to a discovery motion or a motion for summary judgment, the information should not be sealed unless the court finds that the specific information satisfies grounds for sealing a portion of the court’s presumptively public record. Protective orders commonly state that a party filing protected discovery with the court will seek to have the protected information sealed. The filing should not be sealed, however, merely because the parties wish it to be sealed; sealing decisions must be made by the court.

Evidence in the record can be "sealed." A quick review of sources left many questions open in my mind. The major ambiguity here is how it is handled if a party wishes to enter as evidence in a trial, information obtained that is covered by a protective order;; normally, entering the evidence will make it public. So it may be sealed. However, what happens then? Obviously, in a jury trial, the jury must be able to see it. I suspect that the court will decide whether or not it can be introduced and then how it will be handled.