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  • Shelly Albaum

Organizing the Evidence: Marcotulli and Morris


We have so far reviewed a huge volume of evidence individually, and tried to make sense out of what was going on in the ChromaDex-Elysium litigation.

But we are hampered by two things. First, we only have brief snippets for most of the evidence, not the full view. Second, we are tending to look at the evidence in isolation, rather than viewing related pieces together to understand them better.

At trial, in less than three weeks, the attorneys are going to be in full story-telling mode, and they are going to summon from an ocean of emails, texts, depositions, and other documents JUST the pieces that will TOGETHER help the jury understand what was happening.

Below is an example of the kind of thing we're likely to see when all pieces of the puzzle are assembled, which I think demonstrates how much better a view of the evidence the jury is going to get -- and we are going to get! -- than we have now.

On September 1st we looked at the deposition of Elysium CEO Eric Marcotulli from start to finish, and tried to make some sense of it.

But what we did not do on September 1st was to compare the sworn testimony in that deposition with some of the other evidence we have also seen. When we do, the effect can be dramatic.

The following excerpt is drawn from the Eric Marcotulli deposition that was Exhibit 2 to ChromaDex's Opposition to Elysium's motion to exclude personal conduct evidence.

In that deposition, Marcotulli is questioned about an email he accidentally sent to Mark Morris's old ChromaDex account after Morris had already started working at Elysium, but before ChromaDex knew that Morris was at Elysium. The email might have tipped off ChromaDex that Morris was now at Elysium. But in this deposition excerpt, Marcotulli doesn't remember much about it:

Q. Mr. Marcotulli, do you recognize Exhibit 149 as a string of emails in which you were involved, the last one being dated July 27th, 2016?

A. Yes.

MR. ATTANASIO: And for the record, the last four Bates Nos. are 4363.

Q. Now let's walk through this, beginning on page 2, Mr. Marcotulli. At the very bottom of page 2, there's an email from you dated July 25th, 2016. Do you see that?

A. Yes, I do.

Q. You sent the email to Dr. Guarente, yes?

A. Yes.

Q. You sent the email to Mark Morris, correct?

A. Yes.

Q. But you made a mistake, right? You sent this email to the ChromaDex address for Mr. Morris, right?

A. I don't recall sending this email.

Q. Well, do you see Mark Morris here as a recipient at his chromadex.com email address?

A. Yes, I do.

Q. And you sent over some sensitive information; you sent to Dr. Guarente and Mark Morris a patent application that Elysium intended to make, correct?

A. It appears that way, yes.

Q. You sent that to Mr. Morris in his capacity as an Elysium employee. You were seeking his help at Elysium on this patent application, along with Dr. Guarente's help, correct?

A. I'm sorry. Could you, please, repeat that?

Q. Yes. You intended to send this patent application to Dr. Guarente and to Mark Morris at Mr. Morris's Elysium address, correct?

A. I do not recall.

Q. You inadvertently sent it to Mr. Morris's ChromaDex address, correct?

A. I do not know.

Q. Let's look what you write in the next email above it. On July 27th, 2016, you write an email to Mark from ChromaDex. Do you see that?

A. Yes.

Q. And you copy Troy Rhonemus. Do you see that?

A. Yes.

Q. You write to "Mark" from ChromaDex, "Please disregard and destroy the previous note. I sent it mistakenly. It contains privileged and confidential information." Correct? A. That's what the email says, yes.

Q. Who is Mark from ChromaDex?

A. I do not know.

Q. Is it Mark Morris or somebody else?

A. My assumption would be Mark Morris, yes.

Q. Well, you knew on July 27th, 2016, there was no Mark from ChromaDex named Mark Morris, he worked for you.

A. I'm sorry. Was that a question?

Q. Did you know by July 27th, 2016 that Mark Morris no longer worked at ChromaDex?

A. Likely, yes.

Q. Then why are you writing to Mark from ChromaDex?

A. I do not know. I do not recall this particular exchange.

Q. Were you shielding from ChromaDex the fact that Mr. Morris worked for you at this point?

A. I think what I was likely doing is trying to ensure that sensitive data was not misused.

Q. Well, then, why not write to Troy? Why address this email, the text of it, to Mark from ChromaDex?

A. I don't believe that I emailed Troy. I believe that Troy responded on behalf of Mark and thus the thread shows Troy.

Q. Well, no, not exactly. Your email, your first email is at the bottom, where you write to Mark Morris at chromadex.com. The next email is from you, just above it, on July 27th. And you address that email to, among others, Troy Rhonemus. Do you see that?

A. Yes.

Q. That's Troy Rhonemus's entry onto this stage is your email, correct?

A. Again, I don't recall adding Troy or sending this email.

Q. Well, who added Troy if you didn't?

A. It's possible that Troy's email took over for Mark's, is what I'm trying to say.

Q. You mean, while you were typing, somehow magically Troy's email jumped onto your To line instead of Mark Morris's email onto your To line?

MR. SACCA: Object to the form of the question.

A. I don't know.

Q. Mr. Rhonemus writes back to you quick- -- relatively quickly, within a few hours, and he says simply, "Done," correct?

A. Yes.

Q. Then you write back to him and you say, "Thank you, Troy. Autofill is giving me a hard time lately, particularly as our team expands." Is that what happened, autofill had filled in Mr. Morris's ChromaDex address, rather than his new Elysium address; is that what happened to you?

A. I don't know.

Q. Well, was that a true statement when you told Mr. Rhonemus that the cause of the misfire was autofill?

A. I don't recall.

Q. 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." Do you see that?

A. Yes.

Q. Mr. Morris, by this time, was an employee of yours, correct?

A. Yes.

Q. Did you really need to tell Mr. Rhonemus to send your employee his best?

A. I don't know what preceded this particular exchange.

Q. Well, you say, "We always enjoyed working with him. Send him our best," referring to Mr. Morris. Do you see that?

A. Yes.

Q. Why did you do that when he was working for you?

A. I don't recall.

Q. Why did you conceal from Mr. Rhonemus at this time, July 27th, that Mr. Morris had joined Elysium?

A. I don't know.

Q. Is that one of the things you and Mr. Alminana coached Mr. Morris on when you had that call on July 8th, don't tell ChromaDex where you're going?

MR. SACCA: Object to the form of the question.

A. I don't recall.

Q. Did you really intend for Mr. Rhonemus to send your own employee your best?

A. I don't know.

Q. Did you conceal from Mr. Rhonemus, in late July 2016, that Mr. Morris had gone to work for you?

A. I don't recall.

Q. When did you share with anybody at ChromaDex that Mr. Morris had gone to work for you?

A. I don't recall.

Q. Why did you conceal from Mr. Rhonemus that Mr. Morris had gone to work for you by late July 2016?

A. I don't recall.

Okay, so this examination is fairly intense, and reminds us of the cross-examinations we see on TV and movie renditions of courtroom drama.

It also generates 18 of Marcotulli's reportedly 600+ "I don't knows and I don't recalls" in this deposition.

If you're like me, all that memory loss seems suspicious, but on the other hand they are asking about a few emails in a minor exchange 18 months earlier -- it might not have been the kind of thing that lodged in your long-term memory, IF IT WASN'T NOTEWORTHY AT THE TIME.

That's why it's so important that the jury, if they get to hear this testimony, will almost certainly get to ALSO view the text messages that Marcotulli sent at the time of the events in question.

You get to see them, too. I have combined the text messages and added periods for readability, but you can see the original source immediately below my summary with time/date stamps. It says,

ERIC MARCOTULLI: Hey Dan just realized I sent at email about Parkinson's patent to your CDXC email. So if it comes up we have to say I didn't know you were gone. And sent it to get your thoughts given your neurodegenerative stuff we were aware you were working on. And now need to hustle on that patent filing

MARK MORRIS: Eric - I have an email from you to my Elysium account regarding the patent. I am half-way through the patent and will have it done this morning.

ERIC MARCOTULLI: Yes, but I accidentally sent to CDXC too. So I sent one to mark at Chromadex asking him to delete it. Btw Troy wrote me back when I accidentally sent that patent to our CDXC email. I said shit wrong mark. Please delete. He said he did and that you were gone. But big mistake on my part. Just be aware they may know something now.

MARK MORRIS: It is inconsequential. We are doing everything in line with proper business etiquette -- Good people leave bad companies and then contribute to their demise - Welcome to blood bath and beyond, CDXC!

ERIC MARCOTULLI: Hahaha. This is going to be a ridiculous ride.

This text exchange casts the deposition testimony in a slightly new light, I think, because Marcotulli discussed in writing at the time of the events in question exactly what happened and why, and characterized it as a "big mistake," and planned a cover story, and accelerated a project, and cautioned Morris about what to expect as a result of Eric's big mistake.

These are the kind of contemporaneous actions and observations that are likely to be memorable, and so these text messages make less believable Marcotulli's sworn deposition testimony that he did not recall sending the email, did not know if he sent it to the wrong address, did not recall how it happened, did not recall why he told Troy Rhonemus to pass on his wishes to Morris, etc.

Conclusion

It's a good reminder that we only have a partial and atomized view of the evidence right now, but when we have the trial exhibits, trial testimony, and opening/closing statements that tie it all together, there may be a lot more clarity, and things may look different.

#ChromaDex #CDXC #ElysiumHealth #Litigation

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