Preview
Neil Ison
10841 Sutter Circle
Sutter Creek, CA 95685
408-316-7256
Cfhorn03@gmail.com
November 7, 2022
Hon. Joel M. Cohen
Justice of the Supreme Court
60 Centre Street, Courtroom 208
New York, New York 10007
Re: Continuum Energy Technologies, LLC et al. v. Iron Oak, LLC, et al.,
Index No. 657219/2021
Dear Justice Cohen:
I was a licensed attorney in California, State Bar No. 112881. I practiced for over 30
years specializing in complex civil litigation. I retired in 2014. I am now a professor at an
accredited law school, Northwestern California University School of Law. While practicing law,
I represented Rajiv Gosain (Gosain) and related entities in several matters, primarily in
connection with the Russian Federation and its Ministry of Finance.
In 2021, I began consulting with Gosain and related entities viz. Iron Oak, Inc., and
CETech, Ltd., in matters including this action and related actions in Massachusetts and Texas. I
have thoroughly analyzed and consulted on all aspects of those actions, including the
representation of Gosain and related entities by attorney Ambrose Richardson (Richardson). I
have found his legal representation to be far below the standard of practice and care, at some
points constituting no representation at all, as more fully detailed below. I have personal
knowledge of the matters contained in this letter.
Richardson has moved to be relieved as counsel for defendants in this action. There
remain many unresolved issues between defendants and Richardson that make Richardson’s
motion appropriate, but only after a reasonable time to allow the entity defendants and Gosain to
obtain substitute counsel for this highly complex case; complex because there are inter-related
and intertwined actions in Massachusetts and Texas that are proceeding simultaneously.
I note that the complaint in this action is not verified and the letter mechanism for
resolving discovery disputes does not provide for declarations under penalty of perjury, so I offer
these statements in good faith. However, if called upon to proffer my statements in this letter, I
would execute a declaration under penalty of perjury.
1
In addition to the payment for services issue, regarding which defendants have suggested
an amicable resolution satisfying it, the other unresolved issues include, but are not limited to,
the following:
1. The failure of Richardson to specifically raise the pre answer or answer defenses of
foreign jurisdiction, exclusive venue, and exclusive forum selection in Texas under the August
2020 settlement and tolling agreement (STA) with signatories Iron Oak, Continuum Energies
Technology, LLC, (through its judicially appointed receiver) John Preston, and Michael Porter.
That failure may have constituted a waiver insofar as there was a first filed litigation in Houston,
Texas that preceded the filing of this complaint by the Plaintiffs and which is where this case
belongs, not New York where there are no minimum contacts by any party, whether the plaintiffs
or defendants. A copy is attached as Exhibit 1.
2. The failure of Richardson to competently oppose plaintiffs’ motion for partial
summary judgment challenging the two confessions of judgment by, inter alia, using the wrong
motion sequence number to ensure that the papers were presented to the court in a timely manner
and by making a motion for a continuance using the existing motion sequence number which
meant that the motion for a continuance would not be heard until the underlying motion was
heard, which makes no sense. (Dkts. 43,44) Richardson should have proceeded by Order to
Show Cause on the motion for continuance.
3. Despite billing for preparation for the hearing on the confessions of judgment,
Richardson was unable to answer even the most basic questions asked by the court on June 8,
including, but not limited to, the bases for the $150,000 per month fee – it was for the client-side
management of approximately 28 cases, 16 in the US and 12 in Europe, (Dkt. 112) despite
claims that the fee was for only one case, known as von Schonau. The court expressed concern
for such a large fee for only one case, not being aware that this also included Iron Oak paying all
legal fees incurred in Europe as part of its monthly fee. Richardson did not understand and was
unable to explain the bases for the success fees and release of claims in the underlying 2016 and
2018 settlement agreements between the parties, leading to the confessions of judgment (Dkts.
115,116). Finally, Richardson failed to raise the issues that confessions of judgment cannot be
challenged by the debtor as established by unanimous case law, that Michael Case was also Mr.
Preston and CET’s attorney at LeClair Ryan, (Dkt. 134) or that by amendment to the 2016
settlement agreement in September 2016, CET and Mr Preston expressly authorized the entry of
the $4 million confession of judgment despite there being no breach (Dkt. 90) and instructed
their attorney Neil Hartzell in Boston to arrange that attorney Case file the necessary documents
in this court.
2
4. The failure of Richardson to timely oppose the defective service of process on Gosain
in this action within 60 days under CPLR 3211 (e) as per the order dated 9/7/2022 (Dkt.138)
5. The failure of Richardson to inform Iron Oak of the existence of the meet and confer
letter sent by attorney Berg on October 11 until approximately November 2, because Richardson
denies receipt. (Dkt. 151) Regarding the long overdue responses to the discovery, Richardson
failed to inform Iron Oak that there were no continuances agreed upon by the plaintiffs, or that
he had not timely raised objections to the overbroad and onerous discovery demands or propound
any discovery for Iron Oak.
6. The failure of Richardson to challenge plaintiffs’ claims that Iron Oak or Gosain were
involved in discovery avoidance in other cases. The facts omitted by plaintiffs’ letter to the
Court dated 11/1/2022 ( Dkt. 150) are troublesome. Plaintiffs in the related Texas case requested
all documents for a period of eight years, including the 28 cases described above, nearly daily
email, and any documents even remotely connected to the case. The total volume of that
discovery is now known to be 1.2 terabytes, or 100,000,000 pages of word documents. The
court there required not only providing the discovery responses, but also categorizing them as to
each request in 5 days, a process that would require teams of clerks several months to do. Even
the uploading of that data required more time than that. Even so, the plaintiffs in that interrelated
Texas case were provided with a hard drive containing all of that data. Far from avoiding
discovery, Iron Oak and Gosain engaged in a tremendous effort to meet the orders of the court in
as reasonable time as humanly possible. Iron Oak’s 30(b) (6) designee is sitting for a deposition
in the Texas case on November 11 which will be attended by attorney Gabriel Berg, asking the
same questions as he would have asked in this case. Thus, there is no prejudice to the plaintiffs,
who have the financial means to engage in duplicative and vexatious discovery in three
jurisdictions simultaneously, just to harass the defendants.
Given the monumental volume of data and the ultimate necessity of bringing another
attorney up to speed should the court grant Richardson’s motion to withdraw, Iron Oak requests
60 days for a response to the discovery. Although 100,000,000 pages could not be done in that
time frame, much of that data consists of filings in various courts – 16 in the US and 12 in
Europe – that need not be reviewed. The main task will be reviewing eight years or more of
daily emails to search for attorney client privilege and work product privilege and to ultimately
categorize those emails as to which request for production they would be relevant to. That
would still be a very time-consuming task.
Given the almost total abandonment of Richardson of his client Iron Oak, Iron Oak
requests 90 days to propound its own discovery. Iron Oak admits its failure to propound
discovery was not the fault of Plaintiffs, but there will be no prejudice since the discovery will be
the same as the discovery propounded to Plaintiffs in the associated Texas case.
3
Another fact that this court must consider is that defendants, Rajiv Gosain and CETech
have only recently been served and answered. They have had virtually no opportunity to conduct
discovery. They should be given that opportunity. It was not their fault that they were not
served in a timely manner.
It is true that a client is ultimately responsible (respondeat superior) for the action of their
attorneys. However, the court has the authority to sanction an attorney and not the client if the
fault was with the attorney and the client was innocent, as here. In no case should the penalty for
an attorney virtually abandoning his client be a default without an opportunity to cure.
Accordingly, the court should either require Richardson to comply with the discovery
obligations before allowing his withdrawal or allow Iron Oak sufficient time to obtain
replacement counsel, who will need additional time to get up to speed and then comply with the
outstanding discovery estimated to be about 1.2 terabyte of native data which is going to require
significant time, at least 90-120 days.
Iron Oak, CETech and Gosain thank you for your consideration of this letter.
Sincerely,
Neil Ison
4
Preview
Neil Ison 10841 Sutter Circle Sutter Creek, CA 95685 408-316-7256 Cfhorn03@gmail.com November 7, 2022 Hon. Joel M. Cohen Justice of the Supreme Court 60 Centre Street, Courtroom 208 New York, New York 10007 Re: Continuum Energy Technologies, LLC et al. v. Iron Oak, LLC, et al., Index No. 657219/2021 Dear Justice Cohen: I was a licensed attorney in California, State Bar No. 112881. I practiced for over 30 years specializing in complex civil litigation. I retired in 2014. I am now a professor at an accredited law school, Northwestern California University School of Law. While practicing law, I represented Rajiv Gosain (Gosain) and related entities in several matters, primarily in connection with the Russian Federation and its Ministry of Finance. In 2021, I began consulting with Gosain and related entities viz. Iron Oak, Inc., and CETech, Ltd., in matters including this action and related actions in Massachusetts and Texas. I have thoroughly analyzed and consulted on all aspects of those actions, including the representation of Gosain and related entities by attorney Ambrose Richardson (Richardson). I have found his legal representation to be far below the standard of practice and care, at some points constituting no representation at all, as more fully detailed below. I have personal knowledge of the matters contained in this letter. Richardson has moved to be relieved as counsel for defendants in this action. There remain many unresolved issues between defendants and Richardson that make Richardson’s motion appropriate, but only after a reasonable time to allow the entity defendants and Gosain to obtain substitute counsel for this highly complex case; complex because there are inter-related and intertwined actions in Massachusetts and Texas that are proceeding simultaneously. I note that the complaint in this action is not verified and the letter mechanism for resolving discovery disputes does not provide for declarations under penalty of perjury, so I offer these statements in good faith. However, if called upon to proffer my statements in this letter, I would execute a declaration under penalty of perjury. 1 In addition to the payment for services issue, regarding which defendants have suggested an amicable resolution satisfying it, the other unresolved issues include, but are not limited to, the following: 1. The failure of Richardson to specifically raise the pre answer or answer defenses of foreign jurisdiction, exclusive venue, and exclusive forum selection in Texas under the August 2020 settlement and tolling agreement (STA) with signatories Iron Oak, Continuum Energies Technology, LLC, (through its judicially appointed receiver) John Preston, and Michael Porter. That failure may have constituted a waiver insofar as there was a first filed litigation in Houston, Texas that preceded the filing of this complaint by the Plaintiffs and which is where this case belongs, not New York where there are no minimum contacts by any party, whether the plaintiffs or defendants. A copy is attached as Exhibit 1. 2. The failure of Richardson to competently oppose plaintiffs’ motion for partial summary judgment challenging the two confessions of judgment by, inter alia, using the wrong motion sequence number to ensure that the papers were presented to the court in a timely manner and by making a motion for a continuance using the existing motion sequence number which meant that the motion for a continuance would not be heard until the underlying motion was heard, which makes no sense. (Dkts. 43,44) Richardson should have proceeded by Order to Show Cause on the motion for continuance. 3. Despite billing for preparation for the hearing on the confessions of judgment, Richardson was unable to answer even the most basic questions asked by the court on June 8, including, but not limited to, the bases for the $150,000 per month fee – it was for the client-side management of approximately 28 cases, 16 in the US and 12 in Europe, (Dkt. 112) despite claims that the fee was for only one case, known as von Schonau. The court expressed concern for such a large fee for only one case, not being aware that this also included Iron Oak paying all legal fees incurred in Europe as part of its monthly fee. Richardson did not understand and was unable to explain the bases for the success fees and release of claims in the underlying 2016 and 2018 settlement agreements between the parties, leading to the confessions of judgment (Dkts. 115,116). Finally, Richardson failed to raise the issues that confessions of judgment cannot be challenged by the debtor as established by unanimous case law, that Michael Case was also Mr. Preston and CET’s attorney at LeClair Ryan, (Dkt. 134) or that by amendment to the 2016 settlement agreement in September 2016, CET and Mr Preston expressly authorized the entry of the $4 million confession of judgment despite there being no breach (Dkt. 90) and instructed their attorney Neil Hartzell in Boston to arrange that attorney Case file the necessary documents in this court. 2 4. The failure of Richardson to timely oppose the defective service of process on Gosain in this action within 60 days under CPLR 3211 (e) as per the order dated 9/7/2022 (Dkt.138) 5. The failure of Richardson to inform Iron Oak of the existence of the meet and confer letter sent by attorney Berg on October 11 until approximately November 2, because Richardson denies receipt. (Dkt. 151) Regarding the long overdue responses to the discovery, Richardson failed to inform Iron Oak that there were no continuances agreed upon by the plaintiffs, or that he had not timely raised objections to the overbroad and onerous discovery demands or propound any discovery for Iron Oak. 6. The failure of Richardson to challenge plaintiffs’ claims that Iron Oak or Gosain were involved in discovery avoidance in other cases. The facts omitted by plaintiffs’ letter to the Court dated 11/1/2022 ( Dkt. 150) are troublesome. Plaintiffs in the related Texas case requested all documents for a period of eight years, including the 28 cases described above, nearly daily email, and any documents even remotely connected to the case. The total volume of that discovery is now known to be 1.2 terabytes, or 100,000,000 pages of word documents. The court there required not only providing the discovery responses, but also categorizing them as to each request in 5 days, a process that would require teams of clerks several months to do. Even the uploading of that data required more time than that. Even so, the plaintiffs in that interrelated Texas case were provided with a hard drive containing all of that data. Far from avoiding discovery, Iron Oak and Gosain engaged in a tremendous effort to meet the orders of the court in as reasonable time as humanly possible. Iron Oak’s 30(b) (6) designee is sitting for a deposition in the Texas case on November 11 which will be attended by attorney Gabriel Berg, asking the same questions as he would have asked in this case. Thus, there is no prejudice to the plaintiffs, who have the financial means to engage in duplicative and vexatious discovery in three jurisdictions simultaneously, just to harass the defendants. Given the monumental volume of data and the ultimate necessity of bringing another attorney up to speed should the court grant Richardson’s motion to withdraw, Iron Oak requests 60 days for a response to the discovery. Although 100,000,000 pages could not be done in that time frame, much of that data consists of filings in various courts – 16 in the US and 12 in Europe – that need not be reviewed. The main task will be reviewing eight years or more of daily emails to search for attorney client privilege and work product privilege and to ultimately categorize those emails as to which request for production they would be relevant to. That would still be a very time-consuming task. Given the almost total abandonment of Richardson of his client Iron Oak, Iron Oak requests 90 days to propound its own discovery. Iron Oak admits its failure to propound discovery was not the fault of Plaintiffs, but there will be no prejudice since the discovery will be the same as the discovery propounded to Plaintiffs in the associated Texas case. 3 Another fact that this court must consider is that defendants, Rajiv Gosain and CETech have only recently been served and answered. They have had virtually no opportunity to conduct discovery. They should be given that opportunity. It was not their fault that they were not served in a timely manner. It is true that a client is ultimately responsible (respondeat superior) for the action of their attorneys. However, the court has the authority to sanction an attorney and not the client if the fault was with the attorney and the client was innocent, as here. In no case should the penalty for an attorney virtually abandoning his client be a default without an opportunity to cure. Accordingly, the court should either require Richardson to comply with the discovery obligations before allowing his withdrawal or allow Iron Oak sufficient time to obtain replacement counsel, who will need additional time to get up to speed and then comply with the outstanding discovery estimated to be about 1.2 terabyte of native data which is going to require significant time, at least 90-120 days. Iron Oak, CETech and Gosain thank you for your consideration of this letter. Sincerely, Neil Ison 4