Shelly Albaum
Sep 2, 2019
One of the larger, and possibly more important, depositions so-far-revealed in this litigation is the deposition of Elysium co-founder and CEO Eric Marcotulli (Exhibit 2 to CDXC Opposition to Motion to Exclude Personal Conduct Evidence).
We just get snippets of the other depositions, but we get 300+ pages of Marcotulli's.
That's probably because in ChromaDex's brief in opposition to Elysium's motion to exclude evidence of bad personal conduct by Marcotulli and Alminana, ChromaDex wrote that one of them had:
"used some form of the answer 'I do not recall' over 600 times in his deposition."
Marcotulli's deposition seems to fit the bill. Perhaps they had to submit the entire deposition in order to properly support the word count. So that's why we are guessing that ChromaDex is talking about Marcotulli and not Alminana.
Anyway, the stakes in this deposition are high, because (according to ChromaDex):
On or around specific and critical dates, conversations, and events where the facts about what was said or what actually happened are fiercely disputed, and for which the jury will be required to decide between [REDACTED's] word and the word of ChromaDex witnesses. Evidence showing that [REDACTED'S] ability to observe, remember, and narrate key events was impaired is vital for the jury to understand and consider.... (emphasis added)
[B]oth Marcotulli and Alminana brazenly lied under oath at their depositions in an effort to conceal what they knew was highly damaging evidence for Elysium [REDACTED] lies, and his disdain for the judicial process, are so shameless and incredible that they must be seen to be fully appreciated. For that reason, ChromaDex has lodged with the Court a video file with clips of his testimony to allow the Court to directly observe his unapologetic attitude and demeanor and hear his perjunous answers....
We don't have the video, but, again, assuming they are talking about Marcotulli, we do have the deposition, and you can read it here:
This is the kind of thing you will find:
Q. In the next row you say to Mr. Alminana, "Disregard. I am just ultrasensitive to this new patent strategy." What did you mean by that?
A. I do not know.
Q. Well you were ultrasensitive to something, so it must have been important; what was it?
A. I don't recall.
Q. What was the new patent strategy?
A. I don't know.
Q. In the next row you add, "Not only was it ultrasensitive, but it's also so game changing." Do you see that?
A. I do see that, yes.
Q. This ultrasensative, game-changing patent strategy, what was it, sir?
A. I do not recall.
Q. Was it to try to undermine ChromaDex's patents?
A. I do not recall.
Q. Did the new patent strategy lead you and Mr. Alminana to have meetings with both Dartmouth and Grace in the weeks and months after the texts we're looking at here?
A. I do not know.
Q. You and Mr. Alminana, after the texts we're looking at here, went out and met a woman at Dartmouth, didn't you?
A. We did meet with Dartmouth, yes.
Q. And when you met with Dartmouth, you tried to undermine ChromaDex's rights to the licenses it had with Dartmouth, correct?
A. I do not recall that.
...
Q. Do you think it's a coincidence that on June 22nd, Mr. Morris, from his private email account, sends you information about the NAD positive patent, and on June 24th, in your own private messaging with Mr. Aminana, you're talking about a new patent strategy; is that a coincidence?
A. I do not know.
...
Q. Do you remember sending [Dartmouth] over a pile of PDFs and a pile of articles and a pile of public reports about ChromaDex?
A. I do not recall.
Q. Do you remember sending that over to his colleague, the woman we talked about before, Ms. Bhakuni?
A. I do not recall.
Q. Well, what did you send to Dartmouth?
A. Again, I do not recall.
Q. How did the new patent strategy work out that you texted Mr. Alminana about in Exhibit 142, the one that was ultrasensitive?
Mr. Sacca: Object to the form of the question
Q: How did that turn out?
A. I do not know.
Q. You said it was game-changing and ultra-sensitive. What was the outcome?
A. I do not know.
Q. Did you also approach Grace?
A. We did speak with Grace, yes.
Q. Did you trash ChromaDex to Grace like you did to Dartmouth?
A. I don't recall the specifics of our meetings with Grace.
...
Q. Do you remember writing to Mr. Alminana that "Grace is the big key here"? Do you see that?
A. I see that. I do not recall.
Q. Why did you write that?
A. I do not know.
Q. What does "big key" mean?
A. I do not know.
Q. Why is Grace the big key?
A. I do not know.
Q. The next line you write to -- you follow up and write again to Mr. Alminana, "The Dartmouth was is icing." What did you mean by that?
A. I do not know.
Q. Did you mean like icing on the cake?
A. I do not know.
Q. Or did you mean, like, icing in hockey?
A. I do not know.
Q. What did you mean?
A. Again, I do not know.
One of the reasons I never became a litigator is because my younger self was not sure that I could ever master the brilliant kind of cross-examination that Cooley's Michael Attanasio demonstrates here.
But there is still a good question as to why Marcotulli is unwilling to admit even the most mundane facts about what he meant by his own words, and willing to disremember things that no normal person would likely forget.
And the answer to that question, whatever it be, bodes ill for Elysium.
I recommend reading all 300+ pages, but if you only want to jump to specific topics of interest, here are some starting pages for specific topics:
Frustration Among Co-Founders
(pages 16-46 -- "Why you would be raining down insults on Dr. Guarente on January 6th, into the night, 2017?" [Possibly in response to Karen Weintraub article.]
Possible Use of NMN in Basis
(pages 75-77 -- "No viable commercial source exists").
Non-Scientist Authoring Scientific Papers
(pages 78-84 -- "A nonscientist, you, with no scientific degree and no formal scientific training was the leader of the company's first clinical trial; is that accurate?")
Royalties for Patents or for Trademarks?
(pages 100-109 -- "Is there a reason why you, as you sit here today, remember that but you don't remember anything else Frank said to you?")
What Charlie Brenner Did Not Share...
(pages 160-177 -- "So this email that we looked at, Exhibit 78, where you gave Lenny Guarente very specific instructions about what he should try to procure from Ryan Dellinger, you don't remember a single thing that he got out of that conversation?")
Hiring Mark Morris
(pages 188-203 -- "Why did Elysium desire to have a nondisclosure agreement with Mr. Morris before he began working for you while he was still working at ChromaDex?")
Receiving Confidential Information
(pages 204-210 -- "Would it surprise you to know that I have a text from Mr. Morris at ChromaDex to Mr. Alminana with the Live Cell pricing information that appears here?")
The MFN Dispute
(pages 211-232 -- "No concern about price until Mr. Jaksch wrote back to you? I want to make sure we're very clear about that.")
The Big Orders
(pages 233-259 -- "Q. Do you recall telling Mr. Jaksch and perhaps other principals of ChromaDex that Elysium intended to make additional large purchases by the end of 2016? A. At a high level, yes, I remember that.")
Non-Payment of $3 Million
(pages 260 - 263 -- "Did you ever tell anybody around this time that you thought ChromaDex might very well be going into bankruptcy?")
Morris's Start Date
(pages 264 - 279 -- "So your best testimony here today is that Mr. Morris may not have shared anything at all with Elysium prior to resigning from ChromaDex?")
Morris's Transition, Honesty, and Unconditional Loyalty
(page 300-316 -- "So what's going on here? Why did Mr. Morris send this to you from his private email account?")
The Ingredient Sales Spreadsheet
(page 316-320 -- "Do you know why Elysium would have ingredient sales data for ChromaDex customers?")
Hiding Morris
(page 321-329 -- "In the third paragraph you say, "Sorry to hear about Mark. I hope there wasn't a precipitating issue and that all are okay. We always enjoyed working with him. Send him our best."...Why did you conceal from Mr. Rhonemus at this time, July 27th, that Mr. Morris had joined Elysium?)
New Patent Strategy & Interactions with Dartmouth
(pages 332-360 -- "And when you met with Dartmouth, you tried to undermine ChromaDex's rights to the licenses it had with Dartmouth, correct?")
New Patent Strategy & Interactions with Grace
(pages 360-363 -- "Did you trash ChromaDex to Grace like you did to Dartmouth?")