Rossi v. Darden case activity

Coverage of case activity including filing of motion for seal for a motion for sanctions filed by Rossi, the motion was rejected and the motion for sanctions was struck, by the Judge, but was then refiled, see How crazy can it get? This page covers what is below and more, before the refiling.

03/08/2017 0159.0_Rossi_Disc_hearing_notice March 9, re 02/23/2017 ruling and IH objections
03/08/2017 0160.0_Rossi_Motion_to_seal Motion for Sanctions (DE 108? or new Motion?)
== 0160.1_Proposed_order 

DE 159 is a Rossi notice for a Discovery hearing for the next day, first to review the Magistrate Order February 23, 2017. DE 159 has as subjects for the hearing:

Plaintiffs’ Reconsideration of this Court’s February 23, 2017 Order
regarding the Zalli documents
Defendants Darden and Vaughn’s Objections to Plaintiff Rossi’s First
Request for Production of Documents

The notice for that hearing requested by IH had these subjects [link added]:

(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.

“Zalli” is a reference to an email from Darden to Zalli, probably an attorney or involved with legal consultation. The Magistrate had ruled this privileged.

The second item is puzzling this late, but perhaps better late than never?

The motion to seal is also puzzling. Is this with reference to 01/10/2017 0108.0_Rossi_Motion_for_Sanctions ? It is possible that IH requested protection for an attachment attached or described there; this could be, then, in connection with item 2 in the 2/23 hearing request.

However, the way the motion is worded does not seem fully consistent with that interpretation. The Plaintiff’s Motion for Rule 11 Sanctions, as it was styled, is not specifically referenced, no document number and the title is slightly variant.

Fun fact: The motion to seal was entered by Chaiken, but the signatures were mixed up, Annesser’s email address being under Chaiken, and Chaiken’s email address for Annesser. The Motion for Rule 11 Sanctions was entered by Annesser. That Motion was immediately denied, and it is very unlikely that a new Motion for Sanctions would be considered at this time, for the same reason as it was rejected before.

So, my impression: This is Chaiken trying to clean up Annesser’s mess. 

However, if this interpretation is correct, it’s late to close the barn door, the Motion for Sanctions was already published.

Working with Rossi, a musical interlude.

You’re gonna need an ocean, of calamine lotion.

Update March 9, 2017

03/08/2017? 0161.1 Struck Rossi “Motion for Sanctions for Bad Faith Litigation Conduct,” see DE 162
03/09/2017 0162.0_IH_Disc_hearing_notice
03/09/2017 00163.0_Order_denying_160_striking_161
03/09/2017 00164.0 (no document) CLERK’S NOTICE of Compliance pursuant to 163 Order (nc)

My impression above was wrong about the purpose of the Motion for Seal. This actually was about a new motion. When filed, it was not displayed because of the simultaneous motion for seal. The Judge denied it and ordered the Motion for Sanctions filing struck.

Meanwhile, DE 162 is a new discovery hearing request from IH, re:

(1) Plaintiffs’ production of Leonardo Corporation’s bank records; and

(2) the timing of Plaintiffs’ production of documents responsive to Defendants’ Third Request for Production to Leonardo and Defendants’ Fourth Request for Production to Rossi.

This hearing was set simultaneously with the request from Rossi (2 PM today), described above, but for easy of following this, here it is again:

Plaintiffs’ Reconsideration of this Court’s February 23, 2017 Order
regarding the Zalli documents
Defendants Darden and Vaughn’s Objections to Plaintiff Rossi’s First
Request for Production of Documents

Has Rossi counsel gone mad? A second Motion for Sanctions, almost certainly premature, deja vu all over again?

Some comments on LENR Forum seem to misunderstand what happened. Rossi was not moving to seal documents that we would otherwise see. Rather, Rossi wanted to introduce documents that had been marked confidential when disclosed in discovery, in a Motion for Sanctions for Bad Faith Litigation Conduct. Rossi, almost as an afterthought, claimed that some documents had been marked Confidential by IH. It is not clear to me that the Judge reviewed everything.

It appears that the motion was filed as DE 161, yesterday, but not published. The judge denied the motion for seal, and ordered DE 161 struck. We are not going to see anything directly as a result of this order. I don’t know the procedure, but Rossi would have to get court approval to publish those documents, or face sanctions for violating a protective order (which IH is already claiming).

However, the ruling by the Judge appears to claim that “the Court does not find the Motion for Sanctions contains confidential information warranting a departure from this general policy.” On the face of it, this might be negating the designation of the materials as confidential. See the Protective Order, the definition of Confidential. Page 6 of that Order has:

15. If any Materials to be filed with the Court contain Confidential Information, the proposed filing shall be accompanied by a “Motion to Seal Pursuant to Order” to file the Materials or the portion thereof containing Confidential Information (if such portion is segregable) under seal, assuming the filing can be sealed under applicable law. The Motion shall comply with Local Rule 5.4. Nothing in this Paragraph shall require the Court to seal Materials that are not subject to being sealed under applicable law. 

So one of the possible Rossi responses here might be to go ahead and file the Motion for Sanctions with the documents. Or Rossi may decide not to include some documents.

However, disclosing documents marked Confidential by IH without IH having an opportunity to challenge a designation as not-confidential would seem inequitable, so I doubt this would be correct procedure. The judge’s Order to me seems to indicate that some of the allegedly confidential material was not, in her judgement. It was not necessarily all. Had Rossi only confined the motion to file under Seal to the IH-marked documents, the Judge might have approved it. However it is clear that the focus was on documents that Rossi did not want to become public, but wanted to use in an attempt to impeach IH counsel for improper litigation.

That would be a slippery slope.

Author: Abd ulRahman Lomax


7 thoughts on “Rossi v. Darden case activity”

  1. I find Rossi’s motion to seal interesting as I am failing to see what he would gain by this. If I understand correctly, (please advise otherwise), the motion to seal would only make information private to the court and not revealed publicly. That the information would still go to the judge and perhaps the jury, but not publicly released. What benefit to Rossi’s case would this bring?

    Perhaps THH is correct in that everything Rossi does is for ego / PR purposes. The motion to seal might have been to prevent revelations to Rossi supporters that would reflect badly on him?

    The other situation would be that the entity themselves wanted to keep it private, due to possible career harm. I find this the most logical reason. But then would it be Rossi’s attorney that would file this? I do not know how or if a possible witness would / could file a motion to seal?

    So to recap,
    1) I do not see how it would help his case as would not the “court participants” still see the information.
    2) Can a witness file a motion to seal and if so, would it be through the plaintiffs attorney?
    3) If it were simply to “protect Rossi’s ego”, would this be a logical reason why it was denied so quickly?

    Other thoughts as to why the motion to seal?

    P.S. Thanks for the edit capability!

    1. The motion to seal was not a motion to seal otherwise-available information. Rossi wanted to file evidence for a Motion for Sanctions for Bad Faith Litigation Conduct. However, two problems: Rossi did not want to publish the evidence, and also some evidence was revealed in discovery by IH and marked Confidential. He claims.

      The latter would require the Motion to Seal, I have copied the section of the Protective Order on that. However, most of the “confidential” material was apparently Rossi-provided. The judge actually ruled that it did not appear to be confidential. Bottom line, the Judge did not agree that the material was confidential, or at least some of it was not.

      The motion for sanctions at this point would seem to be very strange. I am not sure about some of the legal details. We may see a renewed Motion for Sanctions, with evidence, and if Rossi reveals material that IH marked confidential, he would be obligated to file a motion to seal, as he did. However, that motion was complicated by, my sense, multiple issues. Rossi has already filed an improper Motion for Rule 11 Sanctions, so he is skating on thin ice, I’d suspect. There is already a claim that Rossi violated the Protective Order, see DE 150. That hearing was February 23.

      As to the material not marked Confidential by IH, Rossi could reveal it, unless a deponent so marked the material, I think they can do that.

      To be clear, a motion to seal is required to reveal material claimed as confidential. There is another process for challenging a marking of confidential.

      As to editing, I’d love to give more, but to access the full editor, I need to have an account to assign it to. I will readily do this for good-faith contributors, but nobody has asked for it. Comments are being entered as guests. The system keeps track of them, i.e., once I approve a guest’s post, new ones are automatically approved. But I can’t give advanced privileges to guests. Or if I can, I don’t yet know how.

  2. My reading of the non-optimal Rossi legal footwork is that Rossi is not listening to advice from counsel. That makes sense of why they change, and why they do (I guess under Rossi’s instructions) things that seem to act against their case.

    I detect, just slightly, that the Rossi side incompetence – whether from legal counsel or Rossi over-riding advice – is annoying the judge. But maybe I’m reading something into this that does not exist.

    They don’t appear to have much of a case – and I’d be very surprised if any of the legal actors here think otherwise. But, of course, due process must be followed.

    1. A Motion for Sanctions targets the counsel, not usually the client. Counsel is obligated not to file frivolous motions. So something odd is going on.

  3. Abd – you called the Rule 11 reject almost immediately and were again prescient today as well. The Judge denied 160 around lunch time – just slight longer than the Rule 11 beat down. We were looking forward to responding but will take the outright victory. You may also be right about Chaiken – he has his hands full.

    1. Thanks, Dewey. Actually, the Judge denied the Motion to Seal, and then Struck the new Motion for Sanctions. Strictly speaking, this was not a rejection of the Motion for Sanctions, but of that particular filing. I am now puzzled about Chaiken. My speculation that he was trying to clean up the Annesser mess doesn’t make sense now that I know that he probably filed his own Motion for Sanctions for Bad Faith Litigation Conduct. As before, such a motion when there has been no successful Motion for Summary Judgment is odd. I suppose one could claim Bad Faith Litigation Conduct without having proven that the defense was so egregiously wrong in some aspect, that it must be bad faith, even if the overall facts would not justify Summary Judgment. So, I read this article on Sanctions. Complicated. Basically, the violation better be clear! And filing frivolous motions can be sanctioned.

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