Since I last commented on case documents, we have:
02/20/2017 0144.0_Rossi_hearing_notice amended 2/23
02/21/2017 0145.0_Discovery_Order misc. including Rossi screen names order
02/21/2017 0146.0_Discovery_Order various including Boeing deposition
02/21/2017 Discovery Hearing (no document)
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 2/21/2017. Total time in court: 15 minutes. Attorney Appearance(s): Christopher Rebel Jude Pace, Christopher Martin Lomax, D. Porpoise Evans, Christopher Perre (Digital 10:50:40) (cg1)
02/21/2017 0148.0_Discovery_Order re deposition in Dominican Republic, site inspection
02/21/2017 0149.0_USQL_Answer (Fabiani)
02/21/2017 0150.0_IH_Hearing_Notice re bank subpoenas, Rossi/JMP non-response
02/21/2017 0151.0_Rossi_Memo_re_138 Mazzarino privilege claim
02/23/2017 0152.0_Discovery_Order_re_privilege (Hearing 2/23).
02/23/2017 0153.0_Rossi_memo_opposing_143 re Deep River Ventures privilege
02/23/2017 0154.0 Discovery Hearing (no document)
02/23/2017 0155.0 Discovery Transcript (no document yet)
02/23/2017 0156.0 Discovery Transcript (no document yet)
02/24/2017 0157.0_IH_reply_to_151 (Rossi opposition to Mazzarino privilege claim)
03/02/2017 0158.0_ IH_reply_to_153 Rossi opposition to DRV (Dewey Weaver) privilege claim.
03/02/2017 0158.1_Dewey_Weaver_declaration (on behalf of DRV)
Stuff is Happening.
145 is mostly routine Magistrate business. This Order came out of the hearing February 7, and includes deadlines that already expired. There are warnings of possible sanctions. I would not conclude much from that. These warnings have been issued on both sides.
However, as to the interests of the peanut gallery,
Plaintiffs shall serve their supplemental interrogatory answers to Defendant, John Vaughn’s First Set of Interrogatories by February 10, 2017. Such responses shall include all screen names or aliases Plaintiff Rossi uses to post information on the lnternet. To the extent Plaintiff Rossi does not use screen names or aliases to post information on the lnternet, he must issue a response verifying the same.
D.E. 148 has this:
… the defendant is permitted to question the witness set for deposition in this matter on February 22, 2017, in the Dominican Republic. The plaintiff shall provide the defendant with the name of the attorney for the witness who is scheduled for deposition in the Dominican Republic.
Some of the orders coming from the Magistrate seem to reflect an inability of the lawyers to agree on relatively simple things. The indication here would be that the witness is someone whom Rossi might not want to have deposed. And an obvious guess is Penon, who was missing, IH had been unable to serve him.
Also in D.E. 148:
ORDERED AND ADJUDGED that if the defendant’s expert is available after the conclusion of the deposition in this matter taking place today locally, the site inspection shall occur today after the conclusion of that local deposition. If the defendant’s expert is not available to inspect the site today after the conclusion of the local deposition in this matter, unless the parties agree otherwise, the site inspection shall occur on March 2, 2017, at 9:00 AM.
This is obviously to be an inspection of the Doral site.
D.E. 149 is the USQL (Fabiani) Answer and Affirmative Defenses. While I saw nothing of much note in this (being mostly unexplained denial, which is legally sufficient), I intend to prepare a Merge document with this as with the others, to show the Answers in context of the Claims being answered. It is otherwise unintelligible. One point:
150. Third-Party Defendants state that the Technical Consulting Agreement speaks for itself. Third-Party Defendants deny the allegations in Paragraph 150 to the extent that they are inconsistent with the terms of the Agreement. Third-Party Defendants also deny that the Agreement was properly renewed.
From what we have seen, this claim will likely be estopped because he did accept payments pursuant to the Agreement.
This is interesting, an Affirmative Defense:
The Technical Consulting Agreement is sufficiently ambiguous that upon a determination of the intent of the parties, no breach by the Third-Party Defendants has occurred. The intent of the parties was for Mr. Fabiani to assist Dr. Rossi in his work on the Ecat technology. Mr. Fabiani’s duties and obligations to provide data were of minor consequence to the Third-Party Plaintiff and Mr. Fabiani did in fact provide data to the Third-Party Plaintiff for the entire term of the working relationship. Any data not provided was excused by the failure to pay all sums due to the Third-Party Defendants.
This is at a level of contradiction with what Rossi has commonly claimed, that IH had “two men” on site to report to them what was happening, one being Fabiani (the other would be Barry West). However, it seems fairly clear that the primary duties of both of them was to assist Rossi. At the end, it appears from emails shown that Fabiani stopped talking to IH, when Murray offered to pay him the final payment in return for the data. And then this contradicts the idea that the agreement was not renewed.
(A party may assert contradictory defenses.)
These contradictions appear in the rest of the Affirmative Defenses. Fabiani’s points are at least arguable.
D.E. 150 is of some interest. These are additional issues to be addressed at the upcoming Hearing, time permitting:
Thursday, February 23, 2017 at 3:00 p.m., on (1) Plaintiffs’ and ThirdParty Defendants’ J.M. Products Inc.’s objections to Defendants’ subpoenas to Bank of America, N.A., BankUnited, Inc., and TD Bank, N.A.; (2) Plaintiffs’ violation of the Protective Order entered by this Court on October 14, 2016; and (3) Plaintiff Andrea Rossi’s failure to respond to Industrial Heat and IPH International B.V’s Third Request for Production.
(See D.E. 144 for Rossi business at that hearing, which was amended from D.E. 135). The salient business here is IH claim of attorney-client privilege with regard to certain requests for production and an IH motion for a protective order, which was rejected because not according to procedure, then there are memoranda re law on this, from IH and from Rossi.
D.E. 151 is a Rossi argument against a privilege claim for Mazzarino.
Without detailed study, on these privilege claims, I have a rough impression of the IH case being stronger, but …. not enough to really call this as to every document. Rossi is fishing, looking for admissions that they never intended to pay him, i.e., that he was defrauded. So far, his searches have come up with what pulls the rug out from under some of his arguments: Woodford had committed an additional $150 million if needed, so if it were prudent and necessary, IH could have paid the $89 million. However, that was obviously contingent on Rossi performance on his part of the Agreement.
D.E. 152 is an Order affirming privilege for two emails (one from Darden to a “Mr. Zalli”) and adjudging no privilege for one (involving Zalli and “Mr. Uzi”).
D.E. 153 is a Rossi argument against the Dewey Weaver privilege claim.
D.E. 154-156 are discovery hearing business. Transcripts will be available someday before the end of time. (Actually, 5/24/2017).
D.E. 157 is the IH reply to 151. My immediate reaction: yeah, I thought so. Basic standard; while there may be exceptions, if one communicates with an attorney expecting confidentiality due to common interest with the client, it is probably covered under attorney-client privilege. I’m not, at this point, reading up on the case law.
D.E. 158 is the IH reply to 153. The legal principles appear clear (and contrary to Rossi claims). However, bottom line, IH agrees that if there is an issue about privilege for a document, it is to be submitted to the Magistrate for in camera (private) review. IH is arguing against a wholesale requirement that all documents be provided to Rossi directly. It is possible that the Magistrate, seeing the documents, may rule that some are to be provided as being “business” related, as distinct from privileged legal consultation. However, IH then has a choice to make: accept this or appeal. The issue would be appealable, my opinion. So far, it looks like IH simply does what the court orders; however, defending attorney-client privilege is a major concern of attorneys!
D.E. 158.1 is a Dewey Weaver attestation under oath (penalty of perjury) that he engaged the legal firm in question, even if it appears that the agreement was never properly signed. Standard. This was all really dumb argument from Annesser. Technically possible, but almost certainly a time-waster. Someone wants to waste time. Who would that be?
In comments below, there were speculations:
Bob says (February 22, 2017 at 11:34 am):
If I were a betting man, I would bet the “secret” expert located in the Dominican Republic is none other than Penon. But then I would not bet much either! This drama has some interesting twists and turns in it.
Abd ulRahman Lomax says (February 22, 2017 at 6:34 pm):
Yeah, strange, isn’t it, “Penon” also popped into my mind.
Dewey Weaver played with this on LENR Forum. Shane had asked, February 23, 1:22 am
Is the “site inspection” to occur in the Dominican Republic, or Doral? ECW has it as the DR, and after re-reading that section, it sure sounds like it could be…or it could be poor wording. If so, and it is the DR, could you give a hint as to what the heck took place there? And while you are at it…who is this DR witness IH is deposing?
OMG. Shane isn’t reading our blog! WTF?
ECW badly mangled this interpretation of DE 148, and apparently the dense fog there confused Shane. Alternate interpretations of text are common; and this is a reason why one will sanely attempt to understand every word. Yes, errors happen; however, the Order Frank interpreted contained multiple clues that indicated that there were two separate and distinct depositions, one in the DR, and one “locally,” with IH’s expert witness. The DR deposition was “set for February 22,” whereas the Order was February 21, and refers to the expert deposition as “today.” The alternate reading doesn’t work, and was so deviant from the obvious intention or the Order that it did not even occur to me as a possibility. There is only one major “site” in the case that could possibly be inspected, and that might take a court order to allow. Doral.
In any case, Shane’s question still stood, who was the DR deponent?
Shane – the site inspection is slated for Doral. Some have correctly deduced the DR depo witness (three initials, first initial A and last initial d). You can study the order and find more details – the Court had to get involved in an interesting way.
OMG, Dewey Weaver reads this blog!
Thanks. So the site inspection is in Doral. As to identifying the DR witness with the riddle: “3 initials, first A, and last d”, which does not add up to 3, and then give me my homework to go back to the documents to piece together, sorry, I just am not in the mood to do that. I already spend too much time going over this stuff. Instead, how about you be clear this once?
Life is a riddle, a puzzle, and it is particularly puzzling when we make assumptions about the clues. Dewey did not state that the clue would identify the witness. He wrote that “Some have correctly deduced …”
“Initials” was possibly misleading, but that would not obstruct decoding the message, because the task the clue gives doesn’t depend on the “initials” merely being letters. What are the three letters? The first is A, the last is d. Let me think…. what could that be. If the first part of that sentence is understood, one would be looking for … the name of someone who “deduced” the identity. In fact, it wasn’t a deduction, either, but this is the task of life, again: to see through a forest of noise at something that, then, is reality. Dewey was playing, and, contrary to common Planet Rossi belief, he is not paid as Minister of Propaganda. He is a human being, and does have, in fact, quite an interesting job that leads him to be highly informed on Rossi v. Darden and quite a few other sometimes-murky topics.
I maintain multiple interpretations as far as possible. As we will see, there are those who believe that whatever comes from Dewey is unreliable, but … let’s put it this way: these people are unreliable, themselves.
I’ve been studying Dewey’s comments since NCKhawk, and, where independent evidence has appeared, he has not been misleading, even if he has erred or misstated something on occasion. In this case, if the deponent was not Penon, he is being directly misleading, in a matter that could easily become public. Under the Ministry of Disinformation theory, that would violate MOD Manual section 12.57: Never make a verifiably false public statement. Maintain, at all times, plausible deniability. When Rossi says, for example, that he’s in North Carolina, he probably is, until and unless there is some specific evidence contradicting that.
Shane D – I was trying to let you know that Abd got it right on the DR depo.
Thanks, Dewey. Of course I got it right. What I wrote actually could not possibly have been wrong, I have absolute certainty. I did not write “It was Penon!” I wrote that the name popped into my mind. And it did. Q.E.D. This points up something: how to be a careful witness, how to distinguish between inference and intuition and the like, and fact. Basic ontology. Dewey might have written, Abd’s intuition was right. (and Bob’s!) Intuition operates this way. It doesn’t need “reasons.” It doesn’t need to be certain. Intuition, my understanding, is based on the operation of a vast association engine, with most “processing” occurring outside of consciousness. Of course, having thought of Penon, I could then find “reasons” to support the idea, but I didn’t bother.
More mishegas continued on LENR Forum, the usual mixture of cogency and mind-boggling trolling or idiocy. Meanwhile, on ECW,
Bob wrote: (Thursday, February 23, 2017 8:54 AM)
The inspection was to be at the Doral facility using an expert hired by IH. (The identity has not been revealed as far as I know.) This did not take place yesterday and is now scheduled for March 2.
The witness who has been deposed in the Dominican Republic is Penon and the court ordered deposition was filed by IH, not Rossi.
(The above two items per post from Dewey Weaver)
Shane D. provided a clear synopsis of the new documents at :
[and then he quoted Shane].
Here, Bob wrote: (2017/02/24 at 1:21 am)
today, I was going to make a post about the latest court documents and received a message stating I had been banned from ECW when attempting to save the post. I did not receive any notification from Mr. Ackland nor did I receive any warning about any transgressions I might have committed.
I sent him a private email asking if there had been some issue and he responded later in the day stating “Yes, I took that action based on your posting history on E-Cat World. ” It continued stating that E-Cat World was not a place for skeptics and that “it seems you are firmly convinced that the E-Cat is simply fake”.
Bob’s Discus profile seems to not exist now. For comparison, here is the NCKhawk profile. It is unclear to me if an administrator can delete a Discus profile. My guess is not. However if a user is banned, I’m speculating that the profile becomes disconnected from the posts. I don’t know if NCKhawk is actually banned. In any case, Acland’s reported email comment to Bob indicates a banning of someone for their assumed mental state, rather than for offensive posts, and there are many users on ECW with the mental state ascribed here to Bob. But maybe he is banning all of them. Definitely, skeptical comment seems sparse there.
These are the ECW “commenting guidelines.” It does not appear that Bob violated the guidelines, and the normal, routine sanction for violations would be deletion of offending posts. “Belief status” is not given as a standard, though it says that
E-Cat World is a site that takes LENR seriously, and accepts it as a valid field of research, and a potentially useful energy source. ECW is not a venue where LENR/cold fusion skeptics are given free rein, or a place to debate whether LENR/cold fusion is real. Here we assume here that LENR/cold fusion is a valid scientific phenomenon, an important topic, and one worthy of mature discussion.
… the following types of comments are subject to moderation:
Comments that state openly or by implication that LENR/cold fusion/E-Cat is a fraud or hoax
The lawsuit, Rossi v. Darden, is rife with evidence that particular events involving the E-cat involve fraud. What Bob did that apparently triggered the ban was to quote what had been written elsewhere about events in the case. There was no direct implication of fraud (if Bob had intended such, he’d have pointed to much more specific evidence.)
So … I think that Frank overreacted, and perhaps he’ll rescind the ban and apologize. It’s up to him, of course, it’s his blog. Balancing that freedom is the fact that anyone else may comment on what he does, on his blog if he permits it, or elsewhere whether or not he permits it.
Ordinarily, banning people while not deleting allegedly offensive comments or at least warning them (if, for example, the comments have received a response so that deletion would cause harm to context) would be offensive for a moderator. The biggest problem, for me, as a writer, is, however, (1) deleting comments without opportunity for the author to recover what was written, and (2) banning which prevents authors from correcting errors, or responding to critique, without any necessity and notice. This is rude and inconsiderate.
There was a bit more on ECW of interest.
wpj US_Citizen71 Thursday, February 23, 2017 9:06 AM
DW and ABD say that it’s Penon that is there.
Strange how it has gone from “Rossi says” to “Weaver says”. He also say that there was no site inspection.
Mike Rion wpj Thursday, February 23, 2017 8:36 PM
Yeah, it seems most of the posters on LENR Forum are converts to the new religion called Dewey Weaver, who is nothing more or less than a paid shill of IH.
Typical blogviation. First of all, I did not “say that it’s Penon.” I merely wrote that the name occurred to me, as I imagine it might occur to anyone with extensive knowledge of the case. But I don’t know the fact. Dewey, as an IH insider, might actually know. Rossi, of course, would also know, but would not reveal this, very likely, and I suspect that the only reason we know about the DR deposition and the site inspection is that Rossi would not voluntarily agree to these.
From the name and behavior, I suspect ECW Mike Rion is LENR-Forum Rionrlty. Rion appeared on ECW April 10, 2016, shortly after Rossi v. Darden was filed. He started up on LENR Forum the day before. I’ve been looking at his recent LENR Forum posts, they tend to be classic Planet Rossi. He is apparently a real person, and Mike Rion is his real name, and he is indeed a “retired real estate agent,” living in Hemet, California, apparently about 71 or “in his seventies.”
There is no coherent community on LENR Forum that believes something just because Dewey Weaver says it. I do not report DW Says as “fact,” other than the fact of him saying what he said. Rion calls Dewey Weaver a “shill,” and has treated the documents filed in Rossi v. Darden as if there was big news there. There was not. We knew that Dewey was working for IH, and that he was involved in communicating with the scientists in the LENR field. While it was not known specifically that he had a consulting contract and was probably paid (we still don’t actually know that), it was simply not surprising information.
What was known very quickly, by the end of April, 2016, was that Weaver was an IH insider, that he was a principal in an LLC, Deep River Ventures, which was an identified shareholder in the parent company of IH, IHHI. His comments and statements, then, would be easily known as involving a “conflict of interest.” Nothing changed about that with the court documents. I knew, well before 2017 dawned, that Weaver was a gatekeeper for IH. I’d met him at ICCF-18, in 2013, so this wasn’t new.
On LENR Forum, Rionrlty wrote:
Dewey Weaver wrote:
If you’ve got something concrete to contribute RiRi then bring it otherwise your professional troll status is setting up faster than super glue in the high desert.
Jones Day is doing one heck of a good job on behalf of their clients. These judges are no nonsense and there is very little worry about where this case is heading on the Def / CP side of the battlefield. The same cannot be said for Planet Rossi.
I’d agree with Dewey. Is it because he wrote it? No, it’s because, since early on with Rossi v. Darden, I have been collecting, studying, and analyzing the case documents, individually and in consultation with an attorney, plus reading all the other arguments. I’ve identified and reported on apparent Jones Day errors, but my overall assessment remains that Jones Day is being effective, and I see just about zero possibility that Rossi’s suit can survive trial, and it may not survive even that long, it is highly vulnerable to Summary Judgment. This is not about a belief in Dewey Weaver, about a belief in fraud, as such, nor about any kind of hatred of Rossi. I don’t hate Rossi.
Rion’s comments are highly provocative and accusatory, designed to poke, not to communicate and find agreement. That’s trolling. Most trolls are anonymous. Not all.
Dewey, I’m a retired Real Estate Broker in Southern California and I would love to get paid for posting on forums, but so far I’ve received no offers. Interested? No one has anything concrete to deliver, you because of ND and biased credibility, and the rest of us simply because it hasn’t been supplied to us yet. Along with the rest of the poster’s here we must wait and see what the Jury decides, unless it settles out of court.
Dewey just delivered an apparent fact: the Dominican Republic deponent was Penon. If this were false, it would be useless, and would prove harmful to some supposed anti-Rossi or pro-IH agenda. Having studied Dewey’s comments for almost a year, reading them over and actually compiling them, I can report my preliminary impression: when Dewey reports fact, and when it becomes verifiable, he’s not been lying. Dewey, for that year, has been refusing to answer certain questions because of NDA, which is not just with IH, it would also be with those with whom he regularly communicates.
Rion is ontologically naive. “We must wait.” We “must” wait for what? If I were thinking of investing in Rossi technology, damn straight I’d suggest waiting! However, by what rule are we prohibited from looking at fact as we have it — and even at opinion — and presenting conclusions? Rion is interacting with Dewey, here, who actually knows what’s going on, we can assume, far more than any of the rest of us. Rion then deprecates what Dewey writes, effectively because he’s an insider, but Rion has speculated at length about this case, without knowledge, for almost a year. I haven’t notice that he’s contributed anything of value. (which is true for many blog participants, to be sure). So ….
RiRi – Oh yeah – our field attracts a lot of loud mouth real estate brokers who find themselves credible.
You got nothin’ – thanks for clarifying.
More comedy – less pain.
That’s Dewey Weaver. He is not a spokesperson for Industrial Heat and IH does not necessarily approve of what he writes. While he is under an NDA, that’s between him and IH and anyone else involved. What I’ve seen him write, I doubt that IH would sue him. My guess is that it has been suggested that he tone it down a bit. I suggest that myself. However, my training is in working with people engaged in transformation, and a level of tolerance is required. Nobody will be perfect in any respect. On Planet Rossi, the standard idea is that there is a massive campaign to discredit Rossi, coordinated by APCO, and accomplished with many paid operatives. It’s preposterous. Of course, Sifferkoll and Rossi claimed I was paid, so … obviously I’m not going to admit it, and, obviously, I will lie.
I could go into detail about what Rion wrote on ECW. I won’t. I think he’s sincere, and massively deluded, his thinking is far from clear, and appears to be afflicted with old-guy paranoia, if this is not addressed when we are younger, it gets worse with age as our flexibility declines.
I am, by the way, probably close to his age. Rionrlty is not engaging in real conversation. He’s just tossing cheap shots. Exceptions? Anyone may point to one in comments here. I love being wrong, it is the fastest way to learn. That would be the argument against judging “before we have all the facts.” We might be wrong! But I DGAF about being wrong, because I can correct errors, as far as anything that actually counts. People who are terrified of being wrong paralyze themselves so that they cannot learn. (And then this shades into firm attachment to being right, already.)
If there are any errors on this blog, please point them out! A sincere attempt to correct errors can lead to useful conversations, whether they are “right” or not.