Rossi v. Darden, so what else is new?

Miscellaneous bits and pieces, nothing of much note. Update: something of note, below, a glimpse behind the curtain.

02/14/2017 0137.0_Hearing_Notice Rossi objection to privilege claim and demand for insurance info, notices a discovery hearing over a certain IH claim of privilege, and requiring information be provided about IH insurance. My sense is that provision of insurance information will be required, however, I have no idea of the details.

02/14/2017 0138.0_IH_Motion_-_Protective_order re expected Rossi motion
== 0138.1_Mazzarino_Affidavit covering founding of IH and relationship with IH
== 0138.2_Hearing_transcript hearing 2/7 over this issue

… appears to be about the Rossi hearing subject. The legal argument advanced by Pace appears to be sound, but, of course, we have not seen the other side. And this was premature, because:

02/16/2017 0139.0_Order-motion_for_protective_order (Denied). The order was very simple:

The parties are instructed to follow the procedures regarding discovery outlined in the Order Setting Trial [ECF No. 23].

ECF 23. Seems quite clear:

Discovery Disputes. Magistrate Judge O’Sullivan holds a regular discovery calendar. No written discovery motions, including motions to compel, for protective order, or related motions for sanctions shall be filed unless the Magistrate Judge so directs at his discovery calendar. Counsel must actually confer and engage in reasonable compromise in a genuine effort to resolve their discovery disputes before noticing the dispute for the discovery calendar. The Court may impose sanctions, monetary or otherwise, if it determines discovery is being improperly sought or is being withheld in bad faith. If, after conferring, the parties are unable to resolve their discovery dispute without Court intervention, they shall not file written motions. Rather, the “moving party” shall contact the chambers of Magistrate Judge O’Sullivan at (305) 523-5920 and place the matter on the next available discovery calendar.

The emphasis was in the original, and it looks like it sailed right by Jones Day. “Wrong court, guys, and if you want a soda, they sell them at the kiosk near the entrance.”

Ah, well, we got to see some IH history (never before clearly revealed) and, as well, the attorneys arguing before the Magistrate, who is not amused.

02/16/2017 0140.0_Rossi_Answer. I have not reviewed this yet, but sigmoidal did on LENR Forum, and it’s useful for a start. Nothing major flies out, other than a poor dead horse being beaten; fortunately, dead horses feel no pain, though beating them offends our sensibilities. (This new Answer was technically necessary and possible because of an amendment to the Counterclaim.)

02/16/2017 0141.1_Johnson_and_Bass_Answer

There are no surprises or juicy bits. Legally, if an Answer does not address a Claim, the claim will be assumed true at trial or for pretrial process. So all that must be here, to avoid that, is “Denied” or “Lack knowledge” — and with that response, a defendant can be required to declare lack of knowledge under oath. In theory, defendants should Admit whatever is true of a complaint, but they are allowed wide latitude on this. (These pleadings are not made under oath, though deliberately misleading a court can lead to sanctions, it would not be perjury.)

The language used in “lack knowledge” is archaic, out of fashion, as I pointed out before.

Third-Party Defendants lack sufficient knowledge or information to admit or deny the allegations in Paragraph 1 of the Third-Party Claims and therefore deny the same and demand strict proof thereof.

Annesser used the same language.

IH used this:

6. Defendants lack sufficient knowledge or information to admit or deny the allegations in Paragraph 6 as to Plaintiffs’ reasons for bringing this action, and therefore deny them. To the extent that Paragraph 6 alleges that Industrial Heat and IPH have infringed upon Plaintiffs’ intellectual property, Defendants deny that allegation.

“Strict proof” is not a standard in civil court, so the “demand” is odd. Denial is enough, and when a complaint paragraph is simply denied, there is no demand for strict proof. Here is some commentary on this practice.

However, there seems to be some practice that a claim of “insufficient knowledge,” if not accompanied by an affidavit of non-knowledge, can be considered an admission. Hence the lack of knowledge claim followed by the denial. The strange thing is the added “demands strict proof” language. It seems to be total fluff, because a party cannot demand proof of anything.

I intend to revise my claim/answer comparison documents (linked at the bottom of the case index page) in short order. It will then be much easier to see if something has been denied which the party should know was true.

UPDATE 2/17/2017: Two more documents appeared yesterday:

02/16/2017 0142.0_Order_re_USQL deadline, 2/21/2016 for Fabiani to Answer (or show cause).

This is an order sua sponte (Judge’s own initiative) requiring Fabiani to Answer the IH counter-complaint by 2/21/2017 or face sanctions. (Which could be a default judgment). She wants this ball rolling! No more motions to dismiss for failure to show cause. Enough, already.

I feel sorry for Fabiani. Just a few days ago, he probably believed he was completely off the hook, the Judge had dismissed all counts against him. Then IH persuaded the Judge that the ruling was premature and overlooked enough to allow it to be overturned. However, at this point, all that he needs to do is go over the counter-complaint and admit what is true, deny what is false, and claim “no knowledge and therefore deny” for the rest. The Bass-Johnson Answer is an example. Fabiani has what appears to be a good attorney, so this should not be difficult. He doesn’t have to prove or disprove anything at this point. But he’d better answer on time, no excuses. (There can always be an excuse, but it better be good!)

02/16/2017 0143.0_IH_Memo_re_privilege for Deep River Ventures communications with counsel

This has extensive information about the relationship of DRV (a principal of which is Dewey Weaver), with Industrial Heat, making explicit the nature of the agreement between them, confirming with more specificity what had been seen in Dewey’s writings and communications. The relationship began in May 2013, before the Validation Test. (From Dewey, the friendship predated that, as I’ve understood and remember his comments.) The legal issue is whether or not DRV communications with an attorney in the relevant matters were legally protected by attorney-client privilege. IH claims, most strongly, that the attorney in question had DRV and IH as joint client, and they present other arguments, such as agency. My sense is that their arguments are strong; however, they do offer to produce documents for review in camera (i.e., privately with the judge, in chambers).

The IH argument disagrees with the instructions of the Magistrate, as to the law and an example the Magistrate gave of something that would not be protected, but the Magistrate did ask for a briefing!

At the end of this Memorandum are some exhibits. There are redactions, among them blanking of the name of Dewey Weaver, obviously (as pointed out by sigmoidal.) This gives us more of a glimpse of the Discovery hearings, this one was February 7.

[CHAIKEN, Rossi attorney]: … Now, it is our understanding through hearing testimony from Industrial Heat V.P., that Deep River Ventures was retained for the purposes of helping them with their IP strategy. And perhaps acquiring additional IP related to the technology at issue and finding investors related to that.

And we have also received through discovery things showing that, in fact, what Deep River and [redacted] were doing is anything but that as it relates to [redacted][.] And, in fact, what [redacted] was doing was attempting to do a character assassination of [redacted] on-line.

What is funny is that “Weaver” is not redacted above, and, of course, anyone can quickly find Deep River Ventures and connect it with Dewey Weaver. All this disclosure essentially confirms what Dewey has been saying about his relationship with Industrial Heat, only it makes it more specific (and clearly close).

What is really hilarious is the final claim shown about “character assassination.” I can see I’m going to need to complete that study. I first saw Dewey Weaver appear, as nckhawk, after Rossi filed the lawsuit. Previously, IH had asserted blog posts of Rossi as evidence for their claim of confidentiality violation. There is, however, no claim of libel against Industrial Heat — or Dewey Weaver. So why is this mentioned?

My idea is that Rossi wanted it. Someone had to feed that information to Chaiken. Someone had to make it important in some way. “Consultant and Investor in Industrial Heat Says Bad Things about Inventor Who Has Sued Industrial Heat and His Friends.” Catchy headline, eh? Incredible, eh? Who would have expected such a thing?

Nothing said by Dewey has had the impact of the Exhibits provided by Industrial Heat (and in a few cases, evidence provided by Rossi).

The documents provided by IH establish beyond doubt the dual representation. The documents show how IH more routinely drafted documents, with great attention to detail, the mess that was the License Agreement was very likely not their doing (though they may have contributed sections or provisions and vetoed others), and they show how attorneys communicate and clearly attempt to avoid later conflict.

We may see a memorandum from Rossi counsel. At this point, however, the IH arguments look very strong on this narrow issue.

Early Dewey posts:

March 21, 2016. At this point, Rossi is preparing to sue, as soon as he can, i.e., as soon as the ERV Report is published to him and IH. If anyone at this point other than Dewey and friends knew who he was, they didn’t let it out. This had no impact on Rossi’s reputation, there was far worse being said routinely by many others. If it had been known, then, who nckhawk was, this might have caused far more stir.

March 25, 2016. The comment about securities laws violations was not about Rossi, but about Green, another story.

May 16, 2015. Innocuous comment about Parkhomov, could be considered mildly critical. Nothing about Rossi.

There was no campaign of character assassination, by any stretch, as far as I could find, until Dewey began posting with heavy sarcasm, well after Rossi v. Darden was filed, and I would not call it a “campaign.” As I have mentioned, I’m studying all that history, so this was a quick search on E-Cat World only. The Chaiken comment was irrelevant FUD.


Author: Abd ulRahman Lomax


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