Rossi vs. Darden developments [CASE CLOSED]

From p65 Fogleman Deposition:

Q. Is it your understanding that the IP that is
11 the subject of the license agreement has some value?
12 MR. LOMAX: Objection to the form of the
13 question.
14 THE WITNESS: Based on the results of the
15 efforts to replicate the IP, we haven't been able to
16 determine an answer to that question. I think that
17 is the issue.
18 BY MR. CHAIKEN:
19 Q. So, sitting here today, IPH doesn't know
20 whether it has any value, if any. Would you agree with
21 that?
22 A. So far we have not been able to prove that
23 there is any value in the intellectual property in the
24 license agreement.

This statement, p65 Fogleman deposition, taken on oath, knocks on the head the Planet Rossi meme that IH has discovered value in the Rossi IP...

Otherwise the IPH deposition is a stunning waste of time, with Rossi's guy on a fishing expedition in waters guaranteed to be devoid of fish. It is quite clear that IPH is a holding company with no life of its own, and therefore no answers other than the one from IH. This fishing from Rossi waste's time and money (lawyers to do the preparation, be present at the hearing, cost of the hearing), and annoys everyone. Similarly the IH deposition when there is nothing you will get from corporate questioning you do not get from questioning the principals.

IHFB says this is slimy - I'm inclined to agree - but Rossi will want to be nasty to TD et al anyway he can and this unproductive annoyance is the only tool he has.

Regards, THH

Quote

@THH: I suggest that you once read the technical manual and talk to Optris tech-support.

P's experiments with the Optris software and raw data trump your speculative and unsubstantiated and implausible proposition here. You should never believe what tech support guys tell you about details - they have partial info. Also, I would never believe your interpretation of what tech support guys said...

Quote from THHuxleynew

IHFB says this is slimy - I'm inclined to agree - but Rossi will want to be nasty to TD et al anyway he can and this unproductive annoyance is the only tool he has.

True. I think also one should consider (IMO) the intended effect. It tends to evoke thoughts of, "Surely, he must have something, because nobody would go through all the trouble of filing an expensive lawsuit and all these motions for a scam." But that is the MO used all along. "Surely, he wouldn't build these great towers for turning trash into oil if it didn't work." "Surely, he wouldn't have this complicated device built if it didn't work." "Surely, he wouldn't spent 18 hours a day working if it didn't work." All the while, we don't realize that these thoughts are precisely the intended effect.

Quote from THHuxleynew

P's experiments with the Optris software and raw data trump your speculative and unsubstantiated and implausible proposition here.

To the all mighty... Just to refresh your memory about the "to use" Optris exponent = 3 - for 8-14 micro meter band:

Wyttenbach

I'm wondering whether you post here as a believer - unable to process contrary information - or a troll. You claim that the camera software will indicate temperature as (IR radiance)^3 (n=3). This diagram does indeed highlight the fact that n=3 is an approximation to the required exponent, given the bolometer sensitivity over 7-13u.

The diagram however shows that this is a poor approximation. For example, from 300K to 1000K (0.52 decades) we have 1.6 decades vertical at 10u. Very close to 3. between 1000K and 3000K (0.5 decades) we have 0.7 decades vertical, or n = 1.4. For you to suppose from this that n=3 precisely and all the time is weird. For the temperatures of interest n=2, as has been noted, is about right.

Rather, what makes sense of the n=3 comment is that the camera software determines temperature from an initial n=3 function, followed by lookup table corrections for the range of allowed temperatures which stop at approx 1800K. If it did as you suggest it would be very highly inaccurate when measuring grey body cal sources!

Did I forget to mention that the MFMP, me356, and myself, (independently) and who knows who else, has tested various ceramics and we seem to always get between 0.945 and 0.98 for the IR camera emissivity for various types such as mullite, alumina, alumina cement, alumina fire brick, white pottery....

So I say the challenge is then < throws gloves on ground > :

Who can show me an alumina-based ceramic-like material with a demonstrable, verifiable, LW IR camera emissivity for detecting temperature less than 0.5 ? Less than 0.7 even...

Not some reflective, polished BS. The real thing.

@THH

I'm glad we agree IH's tactics are slimy. I honestly don't see how anyone could defend them. But I'm just waiting for sig to give it a little spin.

As to Fogleman's equivocation: "Based on the results of the15 efforts to replicate the IP, we haven't been able todetermine an answer to that question. I think that is the issue." It seems to me that IH is still unsure whether the e-Cat works. That would be consistent with Darden's lengthy email discussing "compelling results" but never mentioning a specific high COP value. IH was at one point (not in Darden's email, but in a presentation) claiming a COP of between 20 and 80. Perhaps those are the compelling results he was referring to. And maybe they forgot how to generate those kind of results after the lawsuit was filed.

Perhaps coincidence, but a COP of 20 to 80 is what was rumored to be coming from the Doral Plant early on, around April 2015, supposedly info from Plant visitors, according to both Sifferkol and Mats Lewan.

Quote from Eric Walker

Some new documents added to the docket:

We have a new batch of documents with Rossi again calling for sanctions against IH.

The actual Motion for Sanctions is 179, with exhibits 179-01 - 08.

There is a lot here, but it gets a bit technical, and many of the exhibits are important legally, but not very informative. So I'm going to try to get to the "heart of the matter".

But before I get into observation and analysis, I first must repeat that I am not a lawyer. These sanctions involve a rule on discovery (Rule 30(b)(6)) that I've never heard of before now, I know nothing about any related case law, and I have no professional training to interpret the rule. This being the case, I can only use reason and observation to try to see if there is any interesting information regarding this case. With that disclaimer, here's what I observe:

The title of the Motion for Sanctions in 179: Plaintiffs’ Motion for Sanction against Defendants, Cherokee Investment Partners and IPH International, B.V. for Failure to Comply with Rule 30(b)(6)

The first thing I notice from this title is who is NOT included in the Motion, and that list includes Industrial Heat (IH) and Tom Darden (personally). This strikes me as important, because Rossi's suit (as declared in virtually every legal filing on the docket), lists Tomas Darden, IH, IPH, and Cherokee.

This makes sense, because a little googleing shows that Rule 30(b)(6) is a rule for Discovery that applies to corporations (not individuals).

But it's also important in this case to note that although IH is a corporation, this motion does not allege any Rule 30(b)(6) violation by IH regarding it's deposition.

So this is about alleged violations of Deposition rules of Corporations. From 179-03, we see that Rossi deposed IH, IPH and Cherokee on at 9am on three consecutive days in February: IH on the 13th, IPH on the 14th and Cherokee on the 15th.

So let's try to get to the heart of the matter. From the Motion (179), Rossi's lawyers allege that the person deposed (Slocum Fogelman, an 'agent') who represented both IPH and Cherokee was not adequately prepared to answer questions on behalf of these corporations. Rossi's lawyers allege that this lack of preparation harms them because they are not able to get adequate information IPH and Cherokee. From the Analysis section of the Motion:

Defendants ambushed Plaintiffs when they intentionally provided a 30(b)(6) witness – on

two occasions – who: (a) was wholly unprepared to testify about the noticed topics; (b) did not

speak to any IH employee or individual Defendant about testimony given by IH; and (c) decided

with the help of his legal counsel that it would be “duplicative” to prepare for his deposition.

As a direct result of Defendants’ failure to comply with Rule 30(b)(6), Plaintiffs have been

prejudiced as follows:

1. Plaintiffs have been prevented from obtaining discovery about the elements of

Defendants IPH and Cherokee’s affirmative defenses;

2. Plaintiffs have been prevented from obtaining discovery about the elements of

Defendant IPH’s counterclaims;

3. Plaintiffs have been prevented from obtaining discovery about the computation

of Defendant IPH’s alleged damages.

The Court should find that Cherokee and IPH did not adequately prepare Fogelman for his

30(b)(6) depositions, did not timely advise Plaintiffs of Fogelman's limitations before the

deposition began, and did not cause Fogelman or other Defendants’ attorneys, employees or agents

to review other documents in their possession or available to them.

So, the focus of this complaint warranting sanctions by Rossi's lawyers is that IPH and Cherokee (but not IH) corporations have not provided adequate deposition to Rossi regarding IPH and Cherokee's affirmative defenses to Rossi's suit, IPH's counterclaims, and IPH's counterclaim computation of damages. Also, because there is a Court ordered deadline of Feb 28 for completing depositions, Rossi's lawyers allege that they were 'ambushed' by IPH and Cherokee.

From the excerpts of depositions, we see a seemingly endless repetition of a question/answer cycle (as IHFB helpfully noted) where for nearly every question Rossi's lawyers ask, Fogelman refers all questions back to the 'same information that [IH] has to support that evidence'. IHFB posted this from 179-07:

Quote from IH Fanboy

Q. What evidence is IPH aware of to support that allegation?

A. The same evidence that Industrial Heat, LLC has to support that evidence.

Q. And did you talk to somebody from Industrial Heat about that allegation?

A. No.

Q. Do you have any independent knowledge about that allegation other than what Industrial Heat knows?

A. No.

Q. Does anyone else from IPH or would anyone else from IPH be better able to answer this question?

A. I don't know that."

Display More

Another thing we learned: from the deposition transcript, IPH has exactly one human as director: Ben Van Wijke. This shows that IPH is purely a holding company (as the name declares) which does not provide any services or have any employees. Not a surprise, really, but now it is a matter of record.

As far as what information we in the peanut gallery can glean from these postings, there's not much, but a little:

First, unlike the previous Rossi Motion for Sanctions for witness tampering, this filing seems to likely to be initiated by Rossi's lawyers rather than Rossi. It seems highly unlikely that Rossi had any previous knowledge of Rule (30)(b)(6). Also the alleged 'prejudice' (or damage to the case) spelled out by Rossi is much more specific. And the reparations requested are tightly coupled to those damages: Rossi's lawyers are asking the Court to compel competent deposition from these two corporations and to be paid for the legal costs in obtaining depositions and preparing filings.

It is, again, important to pay attention to which parties are involved. For example, Cherokee is being called out by Rossi's lawyers for only the first of their requested remedies: inadequate deposition regarding the Affirmative Defenses filed by Darden, et. al. The reason for this is because Rossi is suing Cherokee along with Darden, IH and IPH. But Darden rejects the notion that Cherokee is a legitimate target of Rossi's suit. So Darden et.al. can argue to the Judge that Cherokee is irrelevant, and that the answers provided by 'agent' Fogelman are adequate. (I don't know if this will work, but it seems like their most reasonable and strongest defense). Cherokee is not countersuing Rossi, so Rossi's lawyers do not include Cherokee in the remaining two 'harms'.

In contrast, Rossi's lawyers are stating that IPH caused harm in all three aspects of the alleged Rule violation: (affirmative defenses, counterclaims, and damage computation). This is because IPH 'owns' IH, and (along with IH) is countersuing Rossi.

But here's an important point: What can Rossi's lawyers hope to accomplish from this Motion for Sanctions? Per their own request, if granted by the Judge, they can expect to get the same answers to their questions that they got from IH's deposition. Remember that Rossi's lawyers have NOT lodged any complaint regarding IH's deposition. We now know for sure that IPH is a shell company. IPH obviously doesn't have any information about this case that's any greater than IH's. It's also possible that Rossi's lawyers might also get some money to compensate for costs/time wasted on those depositions by IPH and/or Cherokee.

From IPH's perspective, in Exhibit 179-05, IPH objects to Rossi's request for deposition, and specifically states:

"IPH disclaims any obligation to prepare an IPH witness to testify as to topics that are unreasonably cumulative or duplicative of discovery sought from Cherokee and IH"

I'm guessing that in the case of IPH and Cherokee, Darden's lawyers did strategically recommend to name Fogelman as an agent for IPH and Cherokee and decided to have Darden prepare him in as minimal way possible as to comply with the law while minimizing risk.

Is it legal for IPH (as a corporation) to spend so little time preparing Fogelman's responses in light of Rule (30)(b)(6)? I don't know. We'll find out when the Judge rules.

My opinion is that unlike previous Motions to Sanction, Rossi's lawyer's Motion actually seems reasonable: How can IPH offer affirmative defenses, countersue Rossi, and make computations of damages against Rossi and then claim (via agent Fogelman) that they don't know anything about those things other than what IH has stated? I guess a defense is that since IPH is merely a holding company, they really don't know these things. Also, I don't know the legal aspects of 'joint suing'. For example, if IH and IPH sue Rossi, does that imply a Boolean 'AND' or a Boolean 'OR' in terms of what roles the co-suing parties assume? If 'OR' maybe IPH doesn't have to be anything but a stupid holding Corporation. If 'AND', then I don't see how IPH can plausibly not know the details to the questions asked by Rossi.

My guess is that the Judge could require IPH to provide more competent deposition. However, unless the Court has already specifically over-ruled IPH's objections to deposition (as I quoted above), and I see no ruling on this from the Court, I doubt the Judge will immediately invoke sanctions. I would suspect that if the Judge agrees that IPH's lack of knowledge is a Rule violation, that the judge will state that IPH's objections are over-ruled, and then the Court will compel IPH to provide more knowledgable deposition.

We should know shortly.

Not surprisingly, my favorite Fan Boy sees slime on IH's part. In this case, it's easier to understand that he sees this as slimey. I don't. I see it as a tactical move by Darden's lawyers to limit cost and risk, and it is consistent with their objections to deposition that they filed in court (as noted in the exhibits). I might think differently if it could be shown that IH violated the deposition Rule, but that has not happened. I suspect that this tactic was recommended by Jones Day. I don't see legal tactics and posturing regarding arcane legal rules as 'slimey'. It's what lawyers get paid to do.

Since IPH is a holding company that owns IH, it is clear that it will have sustained damages by Rossi's misadventures if the court rules against Rossi in one or more of IH's claims in the countersuit. That IPH is a holding company is known to all parties. It seems like a stunt on the part of Rossi's lawyers to depose an agent of IPH, in order to force the question of whether IPH and IH are really separate entities. I wonder how this move will come across to the judges. Do judges have patience for actions that may have some technical basis in law but that end up knowingly wasting people's time?

Sig,

Nice analysis--you exceeded my expectations. I mainly will take issue with only two of your points.

1)

It's slimy. Darden is doing everything he can to avoid answering questions. He is the one that knows the details of what happened. And he is the one that should have appeared. Anybody here who is interested in knowing the truth, and less interested in who wins the case, should be at the very least disappointed in IH's behavior.

2)

"But here's an important point: What can Rossi's lawyers hope to accomplish from this Motion for Sanctions? Per their own request, if granted by the Judge, they can expect to get the same answers to their questions that they got from IH's deposition."

Different questions were asked to the different entities. So Rossi's lawyers were entitled to get answers to their different questions. Instead, Fogelman deflected, denied knowledge of, or passed the buck back to IH. And in some cases, IH passed the buck to IPH.

It's sort of like when I call my insurance company and question them about a bill, they say that is the provider's fault, go talk to them. So I call up the provider and they say, that is the insurance company's fault, go talk to them. Convenient for them. While I get shafted on my bill.

A followup regarding what constitutes 'slimey' behavior. Let's agree that the 'pea under the shell' game is 'slimey' to the extent that the gamer uses skill and deception to hide a pea under a shell against an unwitting player.

In this analogy, it would be 'slimey' for Darden/IH/IPH to hide information by abusing deposition by always referring the 'pea' of information to a different 'shell' of the three corporations.

But that is not what Darden/IH/IPH has done.

What they have done is said "The pea is under IH. Stop trying to look under IPH and Cherokee - after all, they are just shells. IH is where all the information you want is living."

In fact, I think we all strongly suspect that IPH has no added information and that IH has it all (as does the Court, etc.).

This is why I don't think it is 'slimey' behavior by IPH, even if the Court decides that legally, IPH needs to provide more informative Deposition.

Quote from IH Fanboy

Nice analysis--you exceeded my expectations. I mainly will take issue with only two of your points.

1)

It's slimy.

Posts passing like ships in the night. See my response above.

Quote from sigmoidal

What they have done is said "The pea is under IH. Stop trying to look under IPH and Cherokee - after all, they are just shells. IH is where all the information you want is living."

In fact, I think we all strongly suspect that IPH has no added information and that IH has it all (as does the Court, etc.).

This is why I don't think it is 'slimey' behavior by IPH, even if the Court decides that legally, IPH needs to provide more informative Deposition.

It's all pure fiction. They are essentially the same cabal of people running all three. And they in fact did pass the buck back and forth to avoid answering questions. And Darden--the one person who probably knows how all the dots are connected--chose to weasel out of it all.

I'm curious, IHFB, where an agent of IH refers questions to IPH. I have not followed the secondary details closely, so I'm not suggesting that this didn't happen. But I'd be interested if you recall where you saw this.

Quote from IH Fanboy

It's all pure fiction. They are essentially the same cabal of people running all three. And they in fact did pass the buck back and forth to avoid answering questions. And Darden--the one person who probably knows how all the dots are connected--chose to weasel out of it all.

I would be shocked if Darden has not been deposed. I do not believe he is protected in any way from discovery deposition. He is individually named in the suit.

I can see that if you think he has not been deposed, and that he avoided all deposition prior to trial that this would be slimey. I do not believe that happened. He obviously will be called to testify if this goes to trial. I can't see the Court allowing a case to proceed to trial without a key witness having been deposed. That would be extremely unusual.

I'd say: relax. Darden has been deposed. IH has been deposed (without complaint by Rossi's lawyers). IPH is void of any actionable info. Cherokee is not involved.

Quote from Eric Walker

I'm curious, IHFB, where an agent of IH refers questions to IPH. I have not followed the secondary details closely, so I'm not suggesting that this didn't happen. But I'd be interested if you recall where you saw this.

Eric,

We have lots of evidence that IPH passes the buck to IH. We have some evidence (not nearly as much) that IH passes the buck to IPH (See Exhibit 6). With only a few excerpts available at this point of Vaughn's deposition, we can see some buck-passing, but not as much as in the IPH -> IH direction.