4414128 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

BRO-TECH CORPORATION t/a : 

THE PUROLITE COMPANY, et al., : 

 Plaintiffs, : 

 v. :CIVIL ACTION NO.: 2:05-CV-02330-CMR 

THERMAX INC. d/b/a THERMAX USA, : 

and THERMAX LTD. (India), et al., : 

 Defendants. : 

ORDER

AND NOW, this ___ day of ___________, 2009, upon consideration of plaintiffs’ 

Motion For Sanctions Against Thermax and the Individual Indian Defendants for Withholding 

Documents in Discovery, it is hereby ORDERED that Purolite’s Motion is GRANTED. 

 It is further ORDERED: 

1. Defendants shall reimburse plaintiffs for the actual costs and reasonable fees incurred as 

a result of defendants’ failure to produce the Withheld Documents. 

2. Plaintiffs may inform the jury of defendants’ failure to produce the Withheld Documents 

and that this Court sanctioned defendants for that conduct. 

______________________________

Rufe, J. 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 1 of 28
 

4414128 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

BRO-TECH CORPORATION t/a : 

THE PUROLITE COMPANY, et al., : 

 Plaintiffs, : 

 v. :CIVIL ACTION NO.: 2:05-CV-02330-CMR 

THERMAX INC. d/b/a THERMAX USA, : 

and THERMAX LTD. (India), et al., : 

 Defendants. : 

PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST 

THERMAX AND THE INDIVIDUAL INDIAN DEFENDANTS FOR WITHHOLDING 

DOCUMENTS IN DISCOVERY

 Plaintiffs Bro-Tech Corporation t/a The Purolite Company and Purolite International, 

Ltd. (collectively, “Purolite”), by and through their attorneys, respectfully move for sanctions 

against Thermax and the Individual Indian Defendants as described more fully in the 

accompanying Memorandum of Law. In support thereof, Purolite incorporates in full the 

attached Memorandum of Law. 

 WHEREFORE, for all of the foregoing reasons, Purolite respectfully requests the Court 

grant its Motion For Sanctions Against Thermax and the Individual Indian Defendants for 

Withholding Documents in Discovery. 

 Respectfully submitted, 

 /s/ 

Joseph J. McGovern

Richard P. Limburg 

Richard R. Harris

Sarah A. Shapiro 

Jennifer E. Simon

OBERMAYER REBMANN MAXWELL 

& HIPPEL LLP

 One Penn Center - 19th Floor

 1617 John F. Kennedy Boulevard

 Philadelphia, PA 19103

 Telephone: (215) 665-3000

Dated: September 28, 2009 Attorneys for Plaintiffs

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 2 of 28
 

4414128 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

BRO-TECH CORPORATION t/a : 

THE PUROLITE COMPANY, et al., : 

 Plaintiffs, : 

 v. :CIVIL ACTION NO.: 2:05-CV-02330-CMR 

THERMAX INC. d/b/a THERMAX USA, : 

and THERMAX LTD. (India), et al., : 

 Defendants. : 

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR 

SANCTIONS AGAINST THERMAX AND THE INDIVIDUAL INDIAN 

DEFENDANTS FOR WITHHOLDING DOCUMENTS IN DISCOVERY

I. INTRODUCTION 

On October 13, 2008 Purolite submitted a Motion to Compel and For Sanctions after 

finding 3,157 documents that had been wrongfully withheld by Thermax during the discovery 

phase of this case. On March 31, 2009, the Court ruled that Purolite may use the “Withheld 

Documents” in this litigation. Purolite’s motion was then dismissed without prejudice. See

March 31, 2009 Order, attached hereto as Exhibit “A.” Purolite now refiles its motion, focusing 

on the most critical documents only. 

Purolite seeks the actual costs it incurred as a result of defendants’ wrongful withholding 

of the documents and it requests permission to disclose to the jury the fact that defendants 

wrongfully withheld the documents and were sanctioned for that misconduct. 

 Thermax and the Individual Indian Defendants withheld documents, despite Purolite’s 

having served requests for production that specifically called for the documents; despite a 

subpoena issued by Purolite that commanded production of some of the documents; and despite 

the June 29, 2006 Order of Magistrate Judge Wells directing that “[E]ach party shall produce to 

its respective opponents every document it has in its possession, care, custody or control that is 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 3 of 28
4414128 2 

relevant to the subject matter of this litigation.”1 June 29, 2006 Order at ¶ 2, attached hereto as 

Exhibit “B.” 

 The documents withheld from plaintiffs reveal, inter alia: 

• That Pheroz Pudumjee and other high Thermax officials began to recruit Narvinder 

Sachdev as early as mid-2003; not late-2004, as they testified at deposition; 

 

• That Dr. Michael P. Bigwood, Thermax’s chemical expert, was previously employed by 

Thermax; a fact that was not previously disclosed to Purolite. Id; 

• The existence of previously undisclosed experiments and research and development 

activities conducted by Thermax which support Purolite’s damage estimate. 

 

• That Thermax was engaged in manufacturing activities that indicate the use of Purolite’s 

trade secrets and Thermax’s plans for further use of Purolite’s trade secrets; 

 

• Production, sales and marketing activities at Thermax that are in material conflict with 

the reports and deposition testimony of Thermax’s damages and chemistry experts; 

 

• Systematic targeting of Purolite’s customers for “conversion” to Thermax accounts. 

 

 Thermax and the Individual Indian Defendants decided not to search the India and 

Michigan servers in connection with discovery served on them. 2 Yet, Thermax certified through 

 

1

 Paragraph 2 of Magistrate Wells’ Order further required “each party to produce ... every document ... in its 

possession, care, custody or control that is reasonably calculated to lead to the discovery of admissible evidence, 

even if the document produced is not itself admissible at trial.” Magistrate Judge Wells also warned that in the event 

of a violation of her Order, “the court will consider the full panoply of sanctions provided by Fed.R.Civ P. 37 when 

determining what sanction against the offending party is appropriate.” June 29, 2006 Order at ¶ 11, attached hereto 

as Exhibit “B.” 

2

 In 2008, at the initial stages of the search of the India and Michigan Servers under Special Master 

Weiner’s supervision, he determined exactly what Thermax had previously done and what it had failed to do 

with respect to locating documents on those Servers. In his Memorandum and Order, dated July 29, 2008, he 

stated in that regard: 

“It became apparent that despite the mandates of the Stipulated Order, some portions of the India and Michigan 

Images were not searched electronically after the Stipulated Order was agreed to by the parties and entered by 

the Court, and other portions of the India and Michigan Images were only searched in a cursory fashion using a 

single search term. Among other things: 

• No prior electronic searches were conducted of Defendant Thermax, Inc.’s business server from its office 

located in Michigan; 

• No prior electronic searches were conducted in the back-up copy of Defendant Thermax, Inc.’s business 

server from its office located in Michigan; 

• No prior electronic searches were conducted of the hard drive of Defendant Amitabha Mukhopadhyay’s

computer, or of his e-mail account; 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 4 of 28
4414128 3 

its counsel that it had produced “all relevant documents in this matter, including relevant 

documents from the India and Michigan Images.” January 25, 2008 letter from Jacob Kaplan, 

Esq., counsel for Thermax, to the Honorable Carol Sandra Moore Wells, at p. 3, penultimate 

paragraph, attached hereto as Exhibit “C.” 

 To represent that one has produced “all relevant documents” from the “India and 

Michigan Images” necessarily means one has searched those images. As Special Master Weiner 

found, however, the India and Michigan Servers were never searched, prior to March 17, 2008, 

in such a way that one could say “all relevant documents” were “produced.” Defendants, 

through Mr. Kaplan, misled Purolite and this Court. 

 As a result of Thermax’s failure to search for and produce documents on the India and 

Michigan Servers, Purolite conducted discovery from May 18, 2005 until the conclusion of the 

proceedings before the Special Master in September 2008 -- a period of 40 months - - without 

information it needed to properly prepare its case. At no time during that period did Purolite 

have all information in the custody or control of Thermax that is relevant to this case. 

 Thermax failed to comply with its discovery obligations to plaintiffs’ detriment. 

Thermax’s conduct in discovery was a continuation of the conduct that gave rise to the litigation 

 

• While some undefined searches were conducted by counsel of Defendants Pheroz Pudumjee, Narvinder 

Sachdev and S.S. Shastri’s e-mail accounts, no prior electronic searches were conducted of the hard 

drives of their computers; 

• While some undefined searches were conducted by counsel of the e-mail accounts for the head of research 

and development (Kiran Deshpande) and head of production (S. Krishnan) of Thermax, Ltd., and the 

Technical Liaison between Defendant Thermax, Inc. and Defendant Thermax Limited (Vivak Naik), no 

prior electronic searches were conducted of the hard drive of their computers; and 

• The only search that was conducted of the share space of Defendant Thermax Limited Chemical Division’s 

server from its office that is located in India was running a single search term (“Purolite’) on that server, 

without any type of “wildcard” or Boolean commands.” 

July 29 Order, attached hereto as Exhibit “D.” (emphasis added); March 17, 2008 Order, attached hereto as 

Exhibit “E.” 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 5 of 28
4414128 4 

itself and the conduct that damaged Purolite—deception, cover up, disregard for the law and 

contempt for the rules both in and outside the federal courthouse. 

 Fairness dictates that Thermax, not Purolite, bear the consequences of its misconduct. 

According, Purolite respectfully requests an order directing Thermax to pay the legal and other 

professional service providers’ fees and costs it incurred in: 1) obtaining the Order to search the 

India and Michigan Servers; 2) locating the documents on the Servers (including the costs of 

Master Weiner’s services and forensic experts’ fees and costs incurred by Purolite); 3) obtaining 

the Court’s permission to use the withheld documents; and 4) bringing this motion. Purolite also 

seeks permission to disclose to the jury Thermax’s failure to produce the withheld documents 

and the fact that Thermax was sanctioned for that conduct. 

II. RELEVANT PROCEDURAL BACKGROUND

 On May 20, 2005 the parties, being at that time Purolite, Thermax, Inc., and Narvinder 

Sachdev executed, and the Court approved, a Stipulated Temporary Restraining Order that, 

among other things, “enjoined and restrained” defendants from: 

misappropriating or improperly acquiring or disclosing Purolite’s 

trade secrets and/or confidential information ... [and further ordered] 

[d]efendants ... to return to Purolite’s counsel any and all records, 

documents and/or information, whether in original, copied, 

computerized, handwritten or any other form, and to purge any and 

all information from their possession, custody or control within 24 

hours of notice to Defendant or his counsel of the terms of this 

Order, provided, however, that any information so purged shall be 

printed prior to purging and be returned to Purolite. 

 Stipulated TRO, attached hereto as Exhibit “F.” 

 On August 1, 2005, Purolite amended its complaint by adding a second federal 

cause of action and adding Thermax, Ltd. (India) and the Individual Indian Defendants, 

among others. On September 12, 2005, Purolite moved for an order to show cause against 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 6 of 28
4414128 5 

Narvinder Sachdev. A hearing was held on September 23, 2005. On September 30, 2005 

this Court issued an Order holding Sachdev in contempt for violating the Stipulated TRO. 

September 30, 2005 Order, attached hereto as Exhibit “G.” 

 At that time, the Court expanded the scope of the injunction to include the newlynamed defendants and enjoined and restrained them from “in any way using, 

misappropriating or possessing any Purolite information.” 

 On March 1, 2006, the Court ordered “discovery on all issues to commence 

immediately.” March 1, 2006 Order, attached hereto as Exhibit “H.” It also referred the 

case to Magistrate Judge Wells for management of discovery. March 1, 2006 Order, 

attached hereto as Exhibit “H.” 

 Prior to March 2006, Purolite served six sets of requests for production of 

documents on Thermax; and one set each on the Individual Indian Defendants. Between 

March 1, 2006 and August 3, 2007 Purolite served 11 sets of requests for production of 

documents on Thermax and one set each on the Individual Indian Defendants. Plaintiffs’ 

Requests for Production directed to Thermax Inc., Thermax Ltd. and each of the Individual 

Indian Defendants, along with selected Responses of Thermax and each of the Individual 

Indian Defendants, are attached hereto as Exhibit “I.” 

 On March 31, 2006, Thermax Ltd. and Thermax Inc. served answers and objections 

to Purolite’s Third Request for Production of Documents. Request Number 26 of 

Purolite’s third request sought “all documents related to the claims, defenses and damages 

in this case.” Thermax responded as follows, “Subject to the general objections and 

reservation of rights set out above, Thermax will produce any such documents in its 

possession, custody or control.” Id. 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 7 of 28
4414128 6 

 Also on March 31, 2006 each of the Individual Indian Defendants served answers 

and objections to Purolite’s First Request for production of Documents. Request Number 

19 in the requests served on each Individual Indian Defendant sought “all documents 

related to the claims, defenses and damages in this case.” Each of the Individual Indian 

Defendants responded as follows, “Subject to the general objections and reservation of 

rights set out above [the named individual Indian defendant] will produce any such 

documents in his possession, custody or control.” Id. 

 Throughout the succeeding months, the parties called upon Magistrate Wells many 

times to resolve discovery issues, large and small. With respect to document production, 

the Magistrate Judge’s rulings were uniformly consistent -- all relevant documents were to 

be produced. Thus, throughout 2006 and 2007 Purolite believed it was receiving all 

relevant documents that were, responsive to its requests. 

A. Plaintiffs Discover the Existence of the Michigan and India Servers

 On January 7, 2008, Thermax’s computer expert, Stephen Wolfe, testified on deposition 

that in May and June of 2007, two years after the issuance of this Court’s injunction requiring 

the return of Purolite information, Wolfe testified that Huron Consulting Group imaged 

computer hard drives belonging to key defendants and witnesses in this case, including Amitabha 

Mukhpodhyay, Kiran Deshpande, Pheroz Pudumjee, S.S. Shastri and Narvinder Sachdev. These 

hard drives comprise the India and Michigan Servers. See Deposition of Stephen Wolfe, 67:11-

68:19, attached hereto as Exhibit “J.” 

 Mr. Wolfe startled everyone on Purolite’s side of the table when he further testified that 

he developed a search protocol intended to find evidence of Purolite files on the Servers. See

Memorandum Opinion and Order, dated March 17, 2008, p. 3, attached hereto as Exhibit “E.” 

Wolfe further testified that there were numerous “hits,” suggesting the presence of Purolite 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 8 of 28
4414128 7 

documents on the Servers. Even more surprisingly, he testified that after completing review of 

only 5% of the hits yielded by the search, he was ordered to stop the search by Jacob Kaplan, 

Esq. 

 Purolite was flabbergasted to learn that Huron got hits for Purolite documents, but never 

completed a review those hits. This set of facts suggested to Purolite that in 2008, despite 

this Court’s injunction of three years earlier, the India and Michigan Servers had not been 

searched. And that, incredibly, turned out to be exactly the case. 

 B. Defendants Submit Affidavits Representing That Responsive 

 Documents on the Michigan and India Servers Were Already 

 Produced

 In the wake of Mr. Wolfe’s deposition, Purolite sought production of the India and 

Michigan Servers. On January 25, 2008, Thermax submitted a letter resisting production stating 

that “defendants in this case have ... already made a production of all relevant documents in this 

matter, including relevant documents from the India and Michigan Images.” January 25, 2008 

Letter from J. Kaplan to J. Wells, p. 3, attached hereto as Exhibit “C.” 

 Kaplan’s statement was accompanied by affidavits from Individual Indian Defendant S.S. 

Shastri and Ishrat Mirza, both stating that “all documents on these sources requested by Purolite 

have been produced.” Declarations of Ishrat Mirza and S.S. Shastri, Exhibits 2 and 3 to January 

25, 2008 Letter from J. Kaplan to J. Wells, attached hereto as Exhibit “C.” 

 Focusing on the question of compliance, vel non, with the May and September 2005 

injunctions, on March 17, 2008 the Court ordered a review of forensically sound copies of the 

India and Michigan Servers using a protocol prepared by Thermax. Purolite reviewed 300,000 

images that resulted from that search and discovered three documents that unquestionably 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 9 of 28
4414128 8 

contained Purolite information, and which also called into question the completeness of the 

record before the Court. 

 Trial was scheduled to begin within a matter of days of the discovery of these documents. 

The discovery of Purolite information on the India and Michigan Servers three years after the 

Stipulated TRO was entered was sufficiently troubling to cause the trial to be postponed and the 

Court to refrain from publishing its rulings on summary judgment. 

 C. Purolite Uncovers Thousands of Relevant Documents Which 

 Defendants Should Have Produced During Discovery

 On April 15, 2008, the Court Ordered Thermax to produce the contents of the India and 

Michigan Servers for keyword searching to determine whether additional Purolite information 

still remained on Thermax computers in violation of the Court’s Orders. April 15, 2008 Order, 

attached hereto as Ex. “K.” Over 50,000 files were identified using the keywords. When 

Purolite’s counsel began to review these documents, in addition to hundreds of documents 

containing Purolite information, they uncovered thousands of documents responsive to Purolite’s 

discovery requests which had not been previously produced—the “Withheld Documents.” 

 The Withheld Documents fall into five primary categories: conspiracy to recruit Purolite 

employees; Purolite litigation-related documentation; technical documentation indicating 

Thermax’s use of Purolite’s formulae; financial documentation supporting Purolite’s damages 

estimate; and, documentation reflecting solicitation of Purolite’s customers. Although plaintiffs’ 

original Motion to Compel and For Sanctions covered the thousands of documents withheld from 

plaintiffs, plaintiffs now focus the Court’s attention on representative examples from each 

category to highlight the nature of the discovery violations committed by Thermax. 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 10 of 28
4414128 9 

1. Recruitment of Purolite Employees

 At his January 11, 2007 deposition, Pheroz Pudumjee, a member of the Board of 

Directors of both Thermax Inc. and Thermax Ltd., testified that a meeting of the Thermax, Inc. 

board in Edison, New Jersey in the fall of 2004 was the first time he had heard of Narvinder 

Sachdev. 1/11/07 Deposition of P. Pudumjee, 80:1-81:14. 

 Documents F474-E00358587 (attached hereto as Exhibit “L”) and F474-E00358588 

(attached hereto as Exhibit “M”) are an email and attachment from August 25, 2003 sent from 

Mr. Pudumjee, to Prakash Kulkarni, Managing Director of Thermax, Ltd. and Meher Pudumjee, 

Director of Thermax, Inc. and Chairperson of Thermax, Ltd., attaching a defined outline of 

Narvinder Sachdev’s “proposed role and responsibility” at Thermax. 

 F474-E00358588, the attachment to the email, is entitled “Proposed Role & 

Responsibility for Mr. Sachadev [sic].” The attachment identifies one of Mr. Sachdev’s “roles 

and responsibilities” as “Devise & Lead Market Penetration Strategies” and “Participate in 

setting up Supply Chain Capabilities...wherever Thermax Capabilities are lacking” for “Uniform 

Particle Size Resins.” Uniform Particle Size resins were also included as a “deliverable” in Mr. 

Sachdev’s ultimate employment contract with Thermax. Sachdev employment contract with 

Thermax, attached hereto as Exhibit “N.” 

 F474-E00358588 discusses Mr. Sachdev “push[ing] through our pharmaceutical 

capabilities.” Among the documents Mr. Sachdev took with him on his thumb drive from 

Purolite was Purolite’s drug master file for cholestyramine, a pharmaceutical resin. October 11, 

2007 Expert Report of Lawrence Golden, p. 26, 61-64, attached hereto as Exhibit “O.” 

 Finally, F474-E00358588 also discusses Mr. Sachdev: 

• “[A]ssisting Thermax in scale up from the laboratory to commercial production”; 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 11 of 28
4414128 10 

• “Enable[ing] Thermax chemical division to produce high yield products through the 

right process know how for the US and other markets”; and 

 

• “Creat[ing] standard operating procedures based on new processes and equipment.” 

 In addition to an omnibus request for “All documents related to the claims, defenses, and 

damages in this matter” (Third Request For Production To Thermax, Inc. and Thermax, Ltd., 

n. 26, attached hereto as Exhibit “I”) and the Court’s June 29, 2006 Order requiring the 

production of all relevant documents, Purolite served at least two other, separate, requests 

which should have caused Thermax to produce this document. Purolite requested: 

• “Any and all documents concerning or relating to the solicitation for employment, 

recruitment, offer for employment, and/or hiring of Sachdev by Thermax.” First 

Request For Production To Thermax, Inc. and Thermax, Ltd., n. 12, attached hereto 

as Exhibit “I”; and 

• “All documents referring or relating to the recruitment and hiring of Narvinder 

Sachdev, James Sabzali, Nancy Gleasman, and Cindy Gresham.” Third Request For 

Production To Thermax, Inc. and Thermax, Ltd., n. 16, attached hereto as Exhibit 

“I.” 

 Despite these requests, Documents F474-E00358587 and F474-E00358588, found on Mr. 

Pudumjee’s laptop, were never produced to Purolite. Purolite would certainly have used 

these documents in deposing Mr. Sachdev and, had Purolite had access to documents F474-

E00358587 and F474-E00358588, Purolite would have used them to challenge Mr. 

Pudumjee’s representations that the fall of 2004 was his first introduction to Mr. Sachdev. 

 2. Purolite Litigation Related Documentation

 a. Michael P. Bigwood’s 2001 Project For Thermax 

 Thermax proffers Michael P. Bigwood as their expert in ion exchange resin chemistry. 

Dr. Bigwood’s curriculum vitae, included in his November 28, 2007 expert report and attached 

hereto as Exhibit “P,” does not include any mention of having worked for Thermax. At his 

deposition, Dr. Bigwood was asked specifically about his potential bias in undertaking his expert 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 12 of 28
4414128 11 

analysis, and never mentioned having worked for Thermax. January 14, 2008 Deposition of 

Michael P. Bigwood, 45:4-12, attached hereto as Exhibit “Q.” 

 Document F474-L00387122 is a contract and secrecy agreement between Thermax and 

Dr. Bigwood for a project from 2001, attached hereto as Exhibit “R,” and Document F474-

L00090815 is a 2001 report on Ion Exchange Resins and Adsorbents written by Dr. Bigwood for 

Thermax, attached hereto as Exhibit “S.” 

 As discussed, supra, Purolite made an omnibus request for “All documents related to the 

claims, defenses, and damages in this matter” (Third Request For Production To Thermax, Inc. 

and Thermax, Ltd., n. 26, attached hereto as Exhibit “I”) and was under continuing obligation by 

the Court’s June 29, 2006 Order to produce all relevant documents. In addition, Purolite 

subpoenaed documents from Dr. Bigwood, including a request for “Any and all retention or 

engagement letters and/or agreements to perform services by you on behalf of any defendant in 

this matter.” December 10, 2007 Subpoena of Michael P. Bigwood, n. 3, attached hereto as 

Exhibit “T.” Despite the obvious relevance of these documents to Dr. Bigwood’s expert opinion, 

neither Thermax nor Dr. Bigwood produced either of these documents. 

 3. Financial Documentation Supporting Purolite’s Damages 

 Estimate

 Document F474-E00373877 (attached hereto as Exhibit “U”) is a “Systems & Operations 

Audit Report” of Thermax’s “Research and Development Function” from April 2005 through 

January 2006. This document analyzes Thermax’s research and development department and the 

market potential and sales of, inter alia, Thermax’s Uniform Particle Size project, Acrylic Anion 

(A-107) project and High Activity Catalyst project. Purolite made several document requests 

specifically related to these products, including all research, sales and related information. See 

e.g., Plaintiffs’ Third Request for Production of Documents Directed to Defendant Thermax, 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 13 of 28
4414128 12 

Inc., and Thermax, Ltd. # 4(f-h), attached hereto as Exhibit “I”; Purolite has also made several 

document requests regarding Thermax’s research and development endeavors in general. See, 

e.g., Plaintiffs’ Eighth Request for Production of Documents Directed to Thermax, Inc. and 

Ninth Request for Production of Documents Directed to Thermax, Ltd., n. 3, 9, 11, 14, 18, 

attached hereto as Exhibit “I.” Despite Purolite’s repeated requests for this information, 

Thermax failed to produce these documents. 

 Document F474-L00086359, attached hereto as Exhibit “V,” is a PowerPoint 

presentation that includes cost analysis for Thermax’s cation resins, including an analysis of the 

cost of producing cation resin in China, as opposed to India. Purolite specifically requested 

documents regarding cost information for cations. See e.g., Plaintiffs’ Ninth Request for 

Production of Documents to Thermax, Inc. and Tenth Request for Production of Documents to 

Thermax, Ltd., n. 1, attached hereto as Exhibit “I.” Further, Purolite bases some of its damages 

estimate on the cost of production of cations, and therefore this document is undoubtedly 

relevant, and should have been produced pursuant to the Court’s June 29, 2006 Order. 

Nonetheless, Thermax failed to produce this document to plaintiffs. 

 Finally, Document F474-E00377771, attached hereto as Exhibit “W,” is a production 

report from September 2005 which contains a “Scrap Report,” which details the amount of 

“scrapped” material Thermax generates. Purolite’s financial expert, Christopher Gerardi, has 

analyzed Thermax’s “Scrap Reports” to determine yield improvement over time. Purolite 

specifically requested “all Thermax Scrap Reports (see e.g. DFT0007059) from January 1, 2003 

to present” in Plaintiffs’ Ninth Request for Production of Documents to Thermax, Inc. and Tenth 

Request for Production of Documents to Thermax, Ltd., n. 4, attached hereto as Exhibit “I.” 

Purolite bases some of its damages estimate on the yield improvement recognized by Thermax, 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 14 of 28
4414128 13 

and therefore this document is undoubtedly relevant, and should have been produced pursuant to 

the Court’s June 29, 2006 Order. Nonetheless, Thermax failed to produce this document to 

plaintiffs. 

 4. Technical Documentation Supporting Use of Purolite 

 Information

 a. Gel Cation Sulfonation 

 Purolite claims that Thermax is using its recipe for gel cation sulfonation to reduce cycle 

time for its gel cation products. See October 11, 2007 Expert Report of Lawrence S. Golden, p. 

24, 30-36 attached hereto as Exhibit “Q.” Several documents which were not previously 

produced by Thermax were found on the Michigan and India servers, and support Purolite’s 

claim that Thermax is using Purolite’s gel cation sulfonation process provided by Mr. Sachdev, 

and has reduced its cycle time as a result. 

 Document F474-E00052787, attached hereto as Exhibit “X,” is a January, 2005 “Pilot 

plant schedule” from Thermax’s Management Information System, directly prior to defendants’ 

joining Thermax. This Pilot plant schedule shows no intention at that time to pursue the 

Purolite-type “low EDC” process. 

 Document F474-E00051599, attached hereto as Exhibit “Y,”is a Thermax, Ltd. “Status 

Report” document which lists new products being scaled up from research and development to 

the pilot plant. This document shows T-42 Na U, which uses the Purolite new low EDC process, 

as being “dropped in pilot” and “implemented on [manufacturing] plant directly” in May 2005. 

In other words, this document demonstrates that Thermax did not experiment with the new 

process at the pilot plant level, as would be expected with an entirely new process, but went 

directly into large scale manufacturing. 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 15 of 28
4414128 14 

 Furthermore, Dr. Bigwood has concluded that Thermax did not achieve cycle time 

reduction due to implementation of the Purolite low-EDC process. December 31, 2007 

Supplemental Expert Report of Dr. Michael P. Bigwood, ¶¶ 29-31, attached hereto as Exhibit 

“Z.” Document F474-E00055347, attached hereto as Exhibit “AA,” shows an anticipated 

reduction in cycle time of great significance. Lab cycle time with the Purolite low-EDC process 

is reduced from 14 hours to 9 hours, and the proposed plant cycle time with the “modified” 

process would be reduced from 20 hours to 12 hours. Similarly, a table on Document F474-

E00055349, attached hereto as Exhibit “BB,” illustrates Thermax’s anticipated reduction in cycle 

time very clearly. 

 In addition to a general request for “all documents related to the claims, defenses and 

damages in this matter” (Plaintiffs’ Third Request for Production of Documents Directed to 

Defendant Thermax, Ltd., # 26, attached hereto as Exhibit “I”), Purolite made several document 

requests specifically related to gel cation sulfonation, requesting “all Cost Reduction/Cycle Time 

reduction” documents form January 1, 2003 to the present (Plaintiffs’ Tenth Request for 

Production of Documents Directed to Defendant Thermax, Inc. and Twelfth Request for 

Production of Documents Directed to Defendant Thermax, Ltd, # 4, attached hereto as Exhibit 

“I”) and “all document containing standard cost information” related to T-42 (Plaintiffs’ Ninth 

Request for Production of Documents Directed to Defendant Thermax, Inc. and Tenth Request 

for Production of Documents Directed to Defendant Thermax, Ltd, # 1, attached hereto as 

Exhibit “I”). Purolite also requested research and development Management Information System 

documentation (Plaintiffs’ Eighth Request for Production of Documents Directed to Defendant 

Thermax, Inc. and Ninth Request for Production of Documents Directed to Defendant Thermax, 

Ltd, # 14, attached hereto as Exhibit “I”). Despite Purolite’s repeated requests for information 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 16 of 28
4414128 15 

related to gel cation sulfonation and reduction in cycle time, Thermax failed to produce the 

above-identified documents. 

 b. High Activity Catalyst (T-6812 MP)

 In challenging Purolite’s damages estimate, Thermax’s damages expert, Alan Friedman 

stated in his November 28, 2007 Expert Report that “I am informed by Jim Sabzali that Thermax 

never completed a sale of T-6812 and it is my understanding that it was last produced in 

November 2005.” November 28, 2007 Expert Report of Alan Friedman, ¶ 104, attached hereto 

as Exhibit “CC.” 

 Document F474-E00051599, attached hereto as Exhibit “DD,” is a Management 

Information System status report which states “production has received order of 220 m3’’ of T6812 as of July, 2005. Document F474-E00292266, attached hereto as Exhibit “EE,” is a formal 

specification for T-6812 MP being distributed within Thermax as recently as May 8, 2007. 

 Purolite requested that Thermax “produce all documents relating to the research, 

development and manufacture of Thermax’s macroporous resin T-6812, including, but not 

limited to, all work instructions and process manufacturing instructions.” Plaintiffs’ Eighth 

Request for Production of Documents Directed to Defendant Thermax, Inc. and Ninth Request 

For Production of Documents Directed to Defendant Thermax, Ltd., # 9, attached hereto as 

Exhibit “I.” Thermax produced neither document F474-E00051599 nor F474-E00292266 in 

response to this request or its ongoing obligations under the Court’s July 29, 2006 Order. 

 c. Macroporous Gelatine Stabilizer System 

 Purolite claims that Thermax is using its suspension system for macroporous bead 

stabilization. See October 11, 2007 Expert Report of Lawrence S. Golden, p. 24-25, 37-43, 

attached hereto as Exhibit “FF.” Document F474-E00371095, attached hereto as Exhibit “II,” 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 17 of 28
4414128 16 

was not previously produced by Thermax and supports Purolite’s claim that Mr. Sachdev 

provided Thermax with the Purolite suspension system for macroporous bead stabilization. 

 Document F474-E00371095 is an email from Kiran Deshpande, Thermax Ltd.’s head of 

Research and Development to defendant Amitabha Mukhopadhyay regarding the development of 

Thermax’s new gelatine process. Mr. Deshpande notes that the gelatine process was “done 

based on Inc’s inputs.” Mr. Sachdev is presumably the source of “Inc’s inputs.” 

 In addition to a general request for “all documents related to the claims, defenses and 

damages in this matter” (Plaintiffs’ Third Request for Production of Documents Directed to 

Defendant Thermax, Ltd., # 26, attached hereto as Exhibit “I”) and the Court’s June 29, 2006 

Order to produce all relevant documents, Purolite made several document requests specifically 

related to Purolite information, including a request for “Any and all documents concerning or 

relating to Purolite's business operations, including but not limited to...production processes...” 

(Plaintiffs’ First Request for Production of Documents Directed to Defendant Thermax, Inc. and 

Thermax, Ltd, # 5, attached hereto as Exhibit “I”). Despite Purolite’s repeated requests for 

information and the clear relevance of this type of documents, Thermax failed to produce the 

above-identified documents. 

 d. Development of A-107

 Document F474-E00183020 (attached hereto as Exhibit “GG”) includes a series of 

emails discussing the development of a new product for Thermax, A-107, a “type 1 acrylic gel.” 

Purolite claims that Thermax used Purolite’s formula to make A-107. October 11, 2007 Expert 

Report of Lawrence S. Golden, p. 28, 71-74, attached hereto as Exhibit “Q”. Purolite made 

several document requests related to this claim, including all research, sales and related 

information. See e.g. Plaintiffs’ Third Request for Production of Documents Directed to 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 18 of 28
4414128 17 

Defendant Thermax, Inc. and Thermax, Ltd., # 4(h) attached hereto as Exhibit “I”). Despite 

Purolite’s repeated requests for information, related to Purolite Thermax failed to produce this 

document. 

 5. Solicitation of Purolite Customers

 Document F474-L00128052 (attached hereto as Exhibit “HH”) outlines Thermax Inc.’s 

initiatives for Fiscal Year 2005-2006. This document discusses the “induction of new members 

to Thermax, Inc. Chemical team,” i.e. Defendants Narvinder Sachdev, Nancy Gleasman, Cindy 

Gresham and Jim Sabzali, and the “$11 Million worth of prospects have identified for 

conversion in FY0506” (sic). These “prospects” include Purolite customers like Hague Water 

Conditioning. In addition, this document states “With the induction of a senior resource in 

manufacturing [presumably Defendant Narvinder Sachdev], significant moves on cost reduction 

and accelerated product development is expected. Immediate focus would be towards reducing 

costs of Cation resin, Development of Arsenic removal resin and piloting UPS technology.” 

 Purolite requested documents related to the hiring of defendants Narvinder Sachdev, 

Nancy Gleasman, Cindy Gresham and Jim Sabzali. Plaintiffs’ Third Request for Production of 

Documents Directed to Defendant Thermax, Inc., # 16, attached hereto as Exhibit “I.” Purolite 

also requested documents referring or relating to Thermax’s plans for expansion in the United 

States market. Plaintiffs’ Third Request for Production of Documents Directed to Defendant 

Thermax, Inc., # 10, attached hereto as Exhibit “I”. Finally, Purolite requested documents 

referring or relating to reduction of costs of cation resin as discussed supra, development of 

arsenic removal resin (Plaintiffs’ Third Request for Production of Documents Directed to 

Defendant Thermax, Inc., # 4(g), attached hereto as Exhibit “I”) and UPS technology (Plaintiffs’ 

Third Request for Production of Documents Directed to Defendant Thermax, Inc., # 4(a), 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 19 of 28
4414128 18 

attached hereto as Exhibit “I”). Despite Purolite’s repeated requests for this information, 

Thermax failed to produce these documents. 

 Thermax also failed to identify or produce a regularly-published document “Inc. Spots” 

which lists Thermax, Inc.’s solicitation of Purolite customers. Several editions of Inc. Spots 

were found on the Michigan and India Server Images and indicate that Thermax was targeting 

Purolite customers. For example, Document F474-E00407168, attached hereto as Exhibit “II,” 

states “Siemens successful in getting 1st sale of A107 (SBA I, acrylic, gel) to replace Purolite 

A850.” In addition, Inc. Spots document F474-E00378075, attached hereto as Exhibit “JJ” 

indicates that certain products have been put on hold “due to litigation.” 

 In addition to a general request for “all documents related to the claims, defenses and 

damages in this matter” (Plaintiffs’ Third Request for Production of Documents Directed to 

Defendant Thermax, Ltd., # 26, attached hereto as Exhibit “I”) and the Court’s June 29, 2006 

Order to produce all relevant documents, Purolite made several document requests specifically 

related to Purolite information, including a request for “Any and all documents concerning or 

relating to efforts by Thermax to solicit for business purposes customers of Purolite since 

January 1, 2005.” (Plaintiffs’ First Request for Production of Documents Directed to Defendant 

Thermax, Inc. and Thermax, Ltd, # 3, attached hereto as Exhibit “I”). Despite Purolite’s 

repeated requests for information and the clear relevance of “Inc. Spots” Thermax failed to 

produce them. 

 D. Plaintiffs Move To Compel Documents Withheld In Discovery 

On October 13, 2008, Purolite submitted a Motion to Compel and For Sanctions 

regarding the 3,157 documents requested by Purolite during the discovery phase of this case and 

withheld by Thermax. On March 31, 2009, the Court released the Withheld Documents for 

Purolite’s use in the litigation, and dismissed plaintiffs’ Motion to Compel and For Sanctions 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 20 of 28
4414128 19 

without prejudice. See March 31, 2009 Order, attached hereto as Exhibit “X.” Plaintiffs now 

resubmit their motion. 

III. ARGUMENT

 A. Thermax Violated Its Discovery Obligations By Failing To Search For 

 And/Or Produce Highly Relevant Electronic Documents

The obligation of litigants to search for and produce relevant, non-privileged electronic 

documents is well-established. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 

(S.D.N.Y 2003) (recognizing that “electronic documents are no less subject to disclosure than 

paper records. This is true not only of electronic documents that are currently in use, but also of 

documents that may have been deleted and now reside only on backup disks.”); Rowe Entm’t, 

Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y. 2002) (citation omitted); 

Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050, 1053 (S.D. Cal. 1999); Bills v. 

Kennecott Corp., 108 F.R.D. 459, 461 (D. Utah 1985) (citations omitted). In recognition of this 

manifest discovery obligation, Rule 26 of the Federal Rules of Civil Procedure (“Rule 26”) was 

amended in 2006 to codify the duty of parties to produce all “reasonably accessible” 

electronically stored information. See Fed. R. Civ. P. 26(b)(2); see also Fed. R. Civ. P. 26 

Advisory Committee Notes (2006 Amendment) (providing that, under Rule 26(a), “a party must 

disclose electronically stored information as well as documents that it may use to support its 

claims or defenses”). As clarified by amended Rule 26, the only permissible basis for 

withholding responsive electronic discovery is “undue burden or cost” and, before this can 

justify a failure to produce, the withholding party must specifically identify the categories of 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 21 of 28
4414128 20 

electronic discovery withheld and provide the seeking party an opportunity to compel production 

by demonstrating “good cause” for the discovery despite the burden it might entail. Id.

3

Accordingly, Thermax was required to produce all “reasonably accessible,” responsive 

and non-privileged electronically stored information in response to Purolite’s discovery requests. 

See Fed. R. Civ. P. 26(b)(2)(B) and Fed. R. Civ. P. 26(b)(2) advisory committee notes (2006). 

To the extent Thermax deemed certain electronically stored information “not reasonably 

accessible” based on excessive “burden and cost,” it was required to “identify, by category or 

type, the sources containing potentially responsive information that it [was] neither searching nor 

producing . . . [with] enough detail to enable [Purolite] to evaluate the burdens and costs of 

providing the discovery and the likelihood of finding responsive information on the identified 

sources.” Id. With this information, Purolite could have weighed the necessity of a motion to 

compel production of the information, a step that would have required Thermax to demonstrate 

any claims of “undue burden or cost” that it might incur in producing the information at issue. 

Id. 

 Here, Thermax failed to produce thousands of electronic documents and failed to raise 

any objections based on the inaccessibility of the electronic documents on the Michigan and 

India servers.4

 To the contrary, Thermax falsely represented to the Court that it had conducted a 

 

3

 As noted, amended Rule 26 codified existing law and did not impose new discovery obligations. Indeed, 

even prior to the 2006 amendments, existing law dictated that “electronic documents are no less subject to disclosure 

than paper records.” Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y. 2002)

(citations omitted); Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050, 1053 (S.D. Cal. 1999); Bills v. 

Kennecott Corp., 108 F.R.D. 459, 461 (D. Utah 1985). Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316 

(S.D.N.Y. 2003). To this end, the amendments themselves were explicitly intended to apply to pending lawsuits, like 

this one, which were in the midst of fact discovery when the amendments were enacted. See Order of the Supreme 

Court of the United States adopting the amendments to Fed. R. Civ. P. 26 (providing that such amendments “shall 

take effect on December 1, 2006, and shall govern in all proceedings thereafter commenced and, insofar as just and 

practicable, all proceedings then pending”) (emphasis added); W.E. Aubuchon Co. v. Benefirst, LLC, 245 F.R.D. 38, 

41-42 (D. Mass. 2007) (finding it just and practicable to apply the amendments to an action commenced prior to the 

effective date of the amendment where case still in discovery stages). 4

 Of course, any such claim would have been fruitless because the documents discovered during the review 

of the Michigan and India servers were maintained on Thermax's active hard drives and, as such, were readily 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 22 of 28
4414128 21 

search of its servers and had produced “all” responsive documents. See January 25, 2008 Letter 

from J. Kaplan to J. Wells, p. 3, attached hereto as Exhibit “C.”5 As discussed above, it is now 

clear that Thermax improperly withheld relevant, responsive and “readily accessible” electronic 

documents throughout the entire course of discovery in this matter. That Thermax not only 

would fail to produce such documents, but would affirmatively misrepresent to the Court that it 

had conducted a full search and production, raises serious concerns about the integrity of 

Thermax’s entire production and about the integrity of Thermax itself, as presented by its 

lawyers in these proceedings. 

 B. A “Rolls Royce” Search Was Not Necessary To Identify The Withheld 

 Documents 

Defendants argue that they should not be sanctioned because “neither side performed a 

Rolls Royce search” and that their search was “99.94 to 99.98 percent accurate.” Defendants 

Response to Plaintiffs’ Motion To Compel and For Sanctions at 4. Defendants are not using the 

correct metrics, however. First, the vast majority of the data (the 500 gigabytes cited by 

defendants) is irrelevant to the instant matter. Indeed, using keyword tools, Purolite narrowed 

the search to 50,000 documents. Assuming that approximately 3,000 of those 50,000 documents 

were wrongfully withheld, that is an error rate of 6%. In addition, in searching their own 

electronic evidence items, defendants would have had the luxury of eliminating those areas of 

the servers which were clearly irrelevant to this case, and then to cull the range of potentially 

responsive documents yet further through targeted keyword searching. 

 accessible as a matter of law. See Zubulake, 217 F.R.D. at 318-19; W.E. Aubuchon Co., v. Benefirst, LLC, 245 

F.R.D. 38, 42 (D. Mass. 2007) (ranking categories of data from most to least “accessible” under the amended Rule 

26 scheme and noting that active on-line data (such as hard drives), near-line data (such as storage devices like 

optical disks), and offline storage/electronic archives (such as removable disks or magnetic tape or media that is 

stored on racks or shelves) are considered “accessible”). 5

 This statement was supported by affidavits from defendant S.S. Shastri and Ishrat Mirza, both stating that 

“all documents on these sources requested by Purolite have been produced.” (See Declarations of Ishrat Mirza and 

S.S. Shastri, Exhibits 2 and 3 to January 25, 2008 Letter from J. Kaplan to J. Wells, attached hereto as Exhibit “C.”) 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 23 of 28
4414128 22 

Moreover, defendants had the opportunity to confirm with their own employees that 

relevant documents had been produced. It seems unlikely that none of the eleven key Thermax 

personnel, as well as in-house and outside counsel, that Thermax identified as having 

“diligently” searched for documents responsive to plaintiffs’ discovery requests would have been 

entirely unaware of documents reflecting the prior engagement of Thermax’s chemical expert 

Michael P. Bigwood or of prior efforts to hire Narvinder Sachdev. Defendants Response to 

Plaintiffs’ Motion To Compel and For Sanctions at 12-13. That Thermax now expects the Court 

to believe that such omissions were the result of simply not doing a “Rolls Royce” search is 

insulting. Defendants Response to Plaintiffs’ Motion To Compel and For Sanctions at 23. 

 C. Thermax Should Be Sanctioned For Its Manifest Discovery 

 Violations

Parties to litigation must be able to trust that their adversaries have conducted discovery 

in an honest and forthright manner. Where, as here, that trust is violated, it undermines the entire 

truth-seeking process at the heart of the Federal Rules. Thermax’s discovery misconduct -- 

which resulted in significant prejudice to Purolite and unnecessary consumption of this Court’s 

resources - - should not be ignored. Likewise, Purolite should not have to pay for Thermax’s 

misconduct. Sanctions are warranted. 

Federal Rule of Civil Procedure 37 (“Rule 37”) permits the Court to sanction Thermax 

for its discovery violations. Rule 37(c) states that if a party fails to meet its discovery obligations 

under Rule 26, “the court, on motion and after giving an opportunity to be heard: (A) may order 

payment of the reasonable expenses, including attorneys’ fees, caused by the failure; (B) may 

inform the jury of the party’s failure; and (C) may impose other appropriate sanctions, including 

any of the orders listed in Rule 37(B)(2)(A)(i)-(vi).” See Fed. R. Civ. P. 37(c)(1). Rule 

37(B)(2)(A)(i)-(vi), in turn, provides a non-exhaustive list of permissible sanctions which 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 24 of 28
4414128 23 

include, among other things, the granting of an order: “directing that the matters embraced in the 

order or other designated facts be taken as established for purposes of the action, as the 

prevailing party claims; . . . striking pleadings in whole or in part; . . . dismissing the action or 

proceeding in whole or in part; . . . [or] rendering a default judgment against the disobedient 

party . . . .” See Fed. R. Civ. P. 37(B)(2)(A)(i-vi). Whether to award sanctions under Rule 37 

(and, if so, the type of sanction to award) is a decision squarely within the Court’s broad 

discretion. See Puricelli v. Houston, No. 99-2982, 2000 U.S. Dist. LEXIS 7976 (E.D. Pa. June 

12, 2000) (granting motion for sanctions to exclude expert testimony under Rule 37) (citations 

omitted). 

Here, Thermax’s misconduct was intentional; it caused prejudiced to Purolite; it 

consumed judicial resources; it included misleading statements; and it cost Purolite money. At 

a minimum, the Court should award Purolite fees and costs its incurred as a result of Thermax’s 

misconduct. See Fed. R. Civ. P. 37(c)(A) (providing that a court “may order payment of the 

reasonable expenses, including attorneys’ fees, caused by the failure” to produce documents 

required under Rule 26); Chambers v. Nasco, Inc., 501 U.S. 32, 44-45 (1991) (affirming a $1 

million sanction for attorney’s fees and stating that “an assessment of attorney’s fees is 

undoubtedly within a court’s inherent power” to sanction parties for discovery misconduct); In re 

Orthopedic Bone Screw Prods. Liab. Litig., MDL Docket No. 1014, 1998 U.S. Dist. LEXIS 

8019 (E.D. Pa. May 5, 1998)(awarding costs and fees for failure to produce documents); 

Professional Securities Corp. v. National Royal Corp., No. 90-3951, 1991 U.S. Dist. 

LEXIS 18490 (E.D. Pa. Dec. 18, 1991)(awarding costs and fees for failure to answer 

interrogatories); State Farm Mut. Auto. Ins. Co. v. Lincow, No. 05-5368, 2008 U.S. Dist. LEXIS 

18755 (E.D. Pa. Mar. 10, 2008)(awarding costs and fees for failure to comply with discovery 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 25 of 28
4414128 24 

orders); Tague v. Doctor’s Assistance Corp., No. 07-4397, 2008 U.S. Dist. LEXIS 71901 (E.D. 

Pa. Sept. 17, 2008) (awarding costs and fees for failure to satisfy discovery obligations). 

Purolite’s costs and fees include: legal fees; Master Weiner’s fees; and forensic experts’ fees 

incurred to locate and identify the Withheld Documents. The Court should also permit Purolite 

to inform the jury of Thermax’s and the Individual Defendants’ failure to comply with the rules 

respecting discovery and the fact that this Court sanctioned them for their misconduct because 

Thermax’s conduct is a continuation of and relevant to the conduct that gave rise to its liability in 

the first place. 

IV. CONCLUSION

 For all of the foregoing reasons, Purolite respectfully requests that this Court enter an 

Order granting Purolite’s Motion. 

 Respectfully Submitted, 

 /s 

 ____________________________ 

Joseph J. McGovern 

Richard P. Limburg 

Richard R. Harris 

Sarah A. Shapiro 

Jennifer E. Simon 

OBERMAYER REBMANN MAXWELL & HIPPEL LLP 

 One Penn Center - 19th Floor 

 1617 John F. Kennedy Boulevard 

 Philadelphia, PA 19103 

 (215) 665-3000 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 26 of 28
4414128 

 

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion for Sanctions was 

served via ECF (without exhibits, filed separately under seal) and hand delivery upon the 

following: 

Daniel S. Bernheim, III, Esquire 

Willentz Goldman & Spitzer, P.A. 

Two Penn Center Plaza 

Suite 910 

Philadelphia, PA 19102 

Harvey A. Sernovitz, Esquire 

Two Penn Center Plaza 

Suite 910 

Philadelphia, PA 19102 

and via ECF and Federal Express upon the following: 

David Zaslowsky, Esquire 

Baker & McKenzie LLP 

1114 Avenue of the Americas 

New York, New York 10036 

 /s 

 ___________________________________ 

 Sarah A. Shapiro 

Date: September 28, 2009 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 27 of 28
4414128 

 

EXHIBITS FILED 

UNDER SEAL 

Case 2:05-cv-02330-CMR Document 569 Filed 09/28/09 Page 28 of 28