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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ADIL SHAFI, an individual,

Defendant/Counterclaim Plaintiff

v.

BRAINTECH, INC, a Nevada corporation,

Counterclaim Defendant,

and

FREDERICK WEIDINGER, an individual,

Additional Counterclaim Defendant.

_____________________________________/

Case No. 09-10454

Hon. Victoria A. Roberts

RESPONSE OF ADIL SHAFI TO THIRD-PARTY DEFENDANT FREDERICK 

WEIDINGER’S FED R. CIV. P. 37(b) MOTION TO COMPEL COUNTER-PLAINTIFF 

ADIL SHAFI TO PRODUCE CERTAIN SOURCE CODE REQUIRED BY THE 

COURT’S DECEMBER 17, 2010 ORDER

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I. TABLE OF CONTENTS

II. INDEX OF AUTHORITIES...........................................................................................iii

III. INTRODUCTION........................................................................................................1

IV. ARGUMENT...............................................................................................................7

Point 1 – As a Result of the Passage of Time, Braintech and Weidinger

Have Waived Discovery of the Software Code.............................................7

Point 2 – New Developments Warrant Delay of Any Inspection of Software..............8

Point 3 – The Protocol Presented By Weidinger is Deficient......................................9

Point 4 – The Claim That Shafi Refuses to Discuss Protocol is Simply False..........11

V. CONCLUSION..........................................................................................................12

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II. INDEX OF AUTHORITIES

Case(s) Page(s)

Schimke v. Scott, 361 Mich. 654 (1960).................................................................4

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III. INTRODUCTION

The present “dispute” if that is what it is to be called, began on October 29 2010, 

the last day of discovery in this case. On the last day of discovery, the attorneys for 

Braintech (not Weidinger) served two subpoenas which sought the production of 

software owned by Shafi Inc. and proprietary software developed by Adil Shafi’s new 

company, Advenovation. In seeking production of the software, Braintech speculated 

that Mr. Shafi, in connection with developing the new proprietary software for 

Advenovation, copied in whole or in part the proprietary property owned by Shafi Inc. 

(now owned by Braintech). Braintech concedes this entire exercise is relevant only to 

one claim – Shafi’s conversion claim.

Braintech claims that it owns the proprietary software known as RELIABOT 

developed and sold by Shafi Inc. over a period of almost 20 years prior to the sale of 

Shafi Inc. to Braintech. The speculative theory is that Mr. Shafi copied the RELIABOT 

software and incorporated parts or all of it into new software developed with his new 

company, Advenovation. This theory occurred to the lawyers for Braintech1on the last 

day of discovery.

As noted during the hearing which occurred on December 17, 2010, the original 

subpoena required “production” of the software in the offices of counsel for Braintech in 

Detroit, Michigan. It was not until the hearing that the idea came about of using an 

expert to develop a “protocol” to allow the software to be inspected in an appropriate 

 

1

As noted in prior filings related to this issue. Braintech no longer exists. The lawyers for Braintech are 

being paid by an insurance company under an EPLI policy which provides for cost of defense only. Thus, 

the notion that Braintech as an entity is involved in this matter is purely metaphysical.

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“forensic environment.” This idea originated from Magistrate Judge Morgan. On the 

same day of the hearing, the Court entered its orders requiring the parties to agree on a 

procedure for production and review of the software.

After approximately two weeks, Mr. Shafi’s counsel followed up with Braintech's 

attorneys and requested Braintech's input on a proposed procedure to review/inspect 

the software. See email to Anne Widlak dated December 30, 2010, annexed as Exhibit 

A. No response was ever received. On February 23, 2011, Shafi’s attorneys followed 

up and sent a second email inquiring as to whether any progress had been made in 

proposing a protocol to review/inspect the software. Shortly thereafter, Mr. McNeill and 

his firm filed their appearance for counterclaim defendant Weidinger. A week later, on 

March 3, 2011, Weidinger’s counsel expanded upon the initial subpoena request and 

“demanded” a copy of the Advenovation software “as sold and deployed” to an 

Advenovation customer, Hutchinson Inc. 

In the first email, Mr. McNeill expressed an “expectation” that Shafi’s counsel 

would already have a copy of the Advenovation software in its “as sold and as 

deployed” state in possession and ready to immediately turn over to Weidinger’s expert. 

This being the first time this issue was revisited since December 17, 2010, there should 

have been no surprise that copies of the software were not in hand. The so called 

“protocol” delivered by Mr. McNeill came more than five months after the initial 

discovery request, more than two and one half months after this Court had its initial 

hearing and entered the Order and two months following Shafi’s counsel’s request for a 

proposed protocol. 

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The initial request came from a subpoena served by Braintech. Although 

Weidinger participated in the underlying discovery motion, Braintech had yet to say 

anything regarding protocol until its “response” to Weidinger’s motion was filed on 

March 14, 2011. Accordingly, as a result of the passage of time, Shafi submits that 

Braintech (and Weidinger) have waived any issue concern regarding Advenovation 

software.

In the absence of a finding of waiver, Weidinger’s recent activities should give 

this Court pause for heightened scrutiny of the software inspection. On the same day 

this motion was filed, Weidinger and his new company, purportedly a successor to 

Braintech, Robotic Vision Technologies (“RVT”), sued Shafi in the Eastern District of 

Virginia federal court. See Complaint of Weidinger and RVT annexed as Exhibit B. 

Therefore, it is important to understand the distinction between the “Braintech” entity

which made the initial request for production of the software, and Weidinger, who is now 

driving the request for the production. 

As it stands now, Braintech is a completely defunct company with no assets, no 

employees, no offices and no operations. Braintech terminated its operations when its 

secured lender, Silicon Valley Bank, declared Braintech in default of its loan obligations 

and exercised its remedies with respect to certain collateral which was posted in 

exchange for the loan. Although the bank had a first lien on all Braintech assets, in

order to arrange for the loan, Weidinger and his associates posted cash to be held by 

the bank as security for the loan. See Weidinger Tr. pp. 163-164, annexed as Exhibit C. 

In connection with posting the cash collateral, Weidinger and his associates obtained a 

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second all asset lien on Braintech assets. Once the bank declared the default and took 

the cash posted by Weidinger, Weidinger stepped into a first position secured interest in 

all Braintech assets.2 

On May 24, 2010, Weidinger and RVT held an auction of Braintech’s assets and, 

not surprisingly, RVT was the only bidder at the sale. The sale notice is annexed as 

Exhibit D. The general description of the Braintech assets offered for sale included all 

“tangible and intangible” property but the notice also included a specific list of 

intellectual property. RELIABOT software (which was trademarked by Shafi Inc.) was 

not sold to RVT at the auction sale. 

On the date of the sale, Braintech’s claim for rescission in this Court was still 

pending in this Court. It is black letter law that a party claiming rescission must hold and 

offer to return that which was received – which in this case is the RELIABOT software. 

See, Schimke v. Scott, 361 Mich. 654 (1960). Braintech’s complaint was not dismissed 

until a month after the sale, on June 4, 2010. Thus, the software could not have been 

sold to RVT and Weidinger by virtue of the Braintech auction. The U.S. Patent and 

Trademark Office still lists Shafi Inc. as the owner and the trademark has been 

cancelled. See Exhibit E. Braintech never even transferred the trademark, but rather 

let it lapse. Importantly, the Court must assume that the Shafi Inc. assets, including any 

RELIABOT software in possession of Braintech was not included in the sale of assets to 

RVT and Weidinger. 

 

2

It appears that Weidinger and/or his associates assigned all of their rights in the collateral to Weidinger’s 

new company, Robotic Vision Tech.

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Meanwhile, on the same day this motion was filed in this Court, RVT and 

Weidinger filed the new case in the Eastern District of Virginia based upon the same 

transaction or occurrence which is at issue in this case, but also seeking damages and 

injunctive relief for, among other things, unfair competition and breach of the Share 

Purchase Agreement. In the new Complaint, RVT and Weidinger allege that the same 

intellectual property they wish to inspect here “had no continuing economic value,” was 

“never adopted nor utilized by Braintech,” “written in an old unsupported programming 

language,” lacked “requisite documentation,” and lacked “manufacturer communication 

interfaces.” See RVT and Weidinger Complaint at Exhibit B, p. 18 paragraph 83(e). 

Indeed, RVT and Braintech allege “no single piece of RELIABOT source code was ever 

deemed sufficient and therefore, never adopted nor utilized by Braintech.” 

Turning to the so called “protocol” proposed by Mr. McNeill, it is obviously and 

facially deficient. It begins with an improper and unsupported premise: “Adil Shafi and 

his counsel have not provided examiners with further information concerning the source 

code structure, whether and to what extent there exist different versions of the software 

and whether there may exist any auxiliary files that may be required in conjunction with 

the software source code.” This is an entirely untrue statement. Despite the passage of 

3 months from the December 17, 2010, hearing, Shafi has never been asked to provide 

any information about any software. 

Moreover, shortly after the transaction giving rise to this case, Braintech 

engineers scrutinized the RELIABOT software from every possible angle and generated 

a 22 page report concerning their analysis of the RELIABOT source code. See Report 

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of Braintech Engineers annexed as Exhibit F. Contrary to Mr. McNeill’s representation, 

RVT and Weidinger have a virtual roadmap of all of the characteristics, modules, etc., of 

the RELIABOT software. Further, to the extent that Mr. McNeill complains that no 

information has been provided with respect to Advenovation software, no information 

was requested. Rather, following Mr. McNeill’s appearance, he simply demanded that a 

full and complete copy in its “as sold and as deployed” mold be turned over

unconditionally.

It is not standard “protocol” to simply turn over valuable, proprietary and 

confidential software source code to individuals represented to be “experts.” In 

recognition of this, several days after the so called “protocol” was presented, Mr. 

McNeill presented an equally deficient proposed protective order.

Given the vast amount of information already in constructive possession of Mr. 

McNeill and his so called “expert” concerning the RELIABOT software code and its 

characteristics, it is and was Mr. McNeill and his client’s burden to develop a protocol for 

examination of the characteristics, modules and other aspects of the RELIABOT 

software. The so called protocol contains no such information. Such information would 

necessarily include necessary software or software platforms the expert will utilize to 

examine and run tests on the RELIABOT code. A fine example of an appropriate 

protocol is found in a recent case involving Google source code. A copy of a protective 

order which establishes the protocol for examination of the Google source code is 

annexed as Exhibit G. To make a long story short, in the Google litigation, the parties 

agreed that the Google source code would be loaded onto multiple laptops in a secure 

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office location, without access to the internet, without access to thumb drive or disk 

drive copying, under supervision and also loaded with software the examiner intended 

to utilize to run tests on the Google source code. The testing was to occur in a 

supervised environment in a closed room within a law office. This is precisely what was 

proposed to Mr. McNeill. Unfortunately, Mr. McNeill rejected it out of hand and simply 

demanded unconditionally that Shafi turn over the Advenovation source code. The 

protocol proposed by Mr. McNeill is deficient in every possible way. 

Over the course of three months prior to Mr. McNeill’s demand there were zero 

communications, zero requests for information, zero requests for details regarding 

either RELIABOT or Advenovation source code, and such dilatory conduct apparently 

left Mr. McNeill with no choice but to simply make a series of demands from which he 

could claim that Shafi and his counsel were not complying with the Court’s order. 

IV. ARGUMENT

Point 1

As a Result of the Passage of Time, Braintech and Weidinger Have Waived 

Discovery of the Software Code

As noted above, despite counsel for Shafi's inquiries, no proposal for the protocol 

ordered by magistrate Judge Morgan on December 17, 2010, was made until months 

later. When finally made, the proposed protocol simply demanded that Shafi turnover 

his proprietary software to an individual retained by Weidinger. Clearly, by virtue of the 

passage of time, Braintech and Weidinger have waived any claim that the inspection of 

the software developed by Mr. Shafi at his new company, Advenovation is relevant to 

this case.

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Point 2

New Developments Warrant Delay of Any Inspection of Software

The only basis asserted for inspection of the software by Braintech is Shafi's 

claim of conversion. This court recently held a settlement conference and informed the 

parties that the court will be ruling shortly on motions for summary judgment filed by 

Braintech and Weidinger.

More importantly, RVT and Weidinger have filed suit against Shafi in the Eastern 

District of Virginia, claiming among other things, that Shafi is engaged in unfair 

competition with RVT and Weidinger. RVT and Weidinger are in the same business as 

Shafi. RVT and Weidinger seek to sell proprietary vision guided robotics software. RVT 

and Weidinger claim that Shafi is in violation of a covenant not to compete. Up until this 

new case was filed, Weidinger and Braintech made absolutely no effort to inspect Mr. 

Shafi's new proprietary software. Only after this new case has been filed, has 

Weidinger made any attempt to inspect Mr. Shafi's new software. Clearly, the timing of 

the "demand" to simply turn over the software to an expert retained by Weidinger is 

suspect.

At the settlement conference, the Court adjourned the previously established 

May 10, 2011 trial date. The court "penciled in" a possible trial date beginning on 

June 28, 2010. Due to the fact that Weidinger and Braintech have delayed the 

inspection of the software over the course of the last several months, Shafi submits that 

the inspection ought to be delayed further until the Court rules on the pending motions 

for summary judgment. It is possible that the Court will dismiss Shafi's claim for 

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conversion. If the conversion claim is dismissed, there is no further basis for any right to 

inspect the software.

Point 3

The Protocol Presented By Weidinger Is Deficient

Rather than presenting a viable protocol, Mr. McNeil simply demanded Shafi 

unconditionally turn over copies of his new software. In addition, rather than attempting 

to gain any understanding of either the RELIABOT software or Mr. Shafi's new software, 

Mr. McNeil wrote his proposed protocol as if he had been denied information relative to 

the software. As demonstrated herein, Mr. McNeil was denied no information. Rather, 

neither Mr. McNeil nor the attorneys for Braintech requested any information at any time

regarding either the RELIABOT software or Mr. Shafi's new software.

Mr. McNeil made no effort to inform Shafi's attorneys as to what software 

platforms might be necessary to examine and compare the two software source codes. 

Mr. Shafi's new software is proprietary. As the Court was informed at the December 17, 

2010 hearing, Shafi stands ready and willing to allow the new software to be inspected 

and/or compared to the RELIABOT software.

The order in the Google litigation clearly shows how simple it is to come up with a 

workable protocol. The fact is (and Mr. McNeil is aware of this) the RELIABOT software 

code is written on an antiquated Microsoft program which is no longer supported by 

Microsoft. See Exhibit G. Braintech and Weidinger have known this since before this 

case was filed. Shafi has informed Mr. McNeil that his new software is written on a 

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Microsoft program platform called VB.net. It appears that Mr. McNeil has not even 

provided this most basic information to Weidinger’s purported expert.

Shafi should not be forced to simply hand over copies of his proprietary software 

merely because Mr. McNeil has failed to do his homework and understand the most 

basic information about the software and what other software platforms the purported 

expert will utilize to compare RELIABOT with Mr. Shafi's new software code. In fact, 

when the so-called protocol was delivered, it was not even associated with a protective 

order. Only after Shafi's counsel complained that the expert would not even be subject 

to a court order, was a protective order belatedly drafted and forwarded to Shafi's 

counsel.

Even if the Court accepts the protocol presented by Weidinger and Braintech, 

there should be absolutely no circumstances under which anyone associated with 

Braintech, RVT or Weidinger will be exposed to any information regarding Mr. Shafi's 

new software. RVT and Weidinger are competitors of Mr. Shafi's new venture. 

Accordingly, any information related to the software inspection must be designated as 

"attorneys eyes only."

There are other issues related to the protocol which Mr. McNeil has failed to 

address. For example, establishing a deadline for a Rule 26 expert report, in the 

absence of which, there should be an understanding that no testimony will offered at 

trial concerning the software. This request was simply ignored as Mr. McNeil repeated 

his demand to simply turn over the software. 

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Point 4

The Claim That Shafi Refuses To Discuss Protocol Is Simply False

Weidinger and Braintech argue that Shafi has refused to discuss the protocol of 

the software inspection. This is simply not true. The protocol which was “presented" to 

Mr. Shafi's counsel - was simply a demand to turn over the software. No effort 

whatsoever was made to gather any information. Shafi, through his counsel, suggested 

that the software would be produced in a controlled environment, loaded onto secure 

laptops and supervised at the offices of Berry Moorman PC or any other convenient 

location. This was vastly different than the offer made at the hearing to simply produce 

the software code at the law office of Berry Moorman. Rather, this is an appropriate and 

recognized procedure and it is Weidinger and his counsel who have refused to discuss 

the "appropriate forensic environment."

In its "response" Braintech makes a number of allegations which are also false. 

Braintech claims it has diligently pursued the software issue. Braintech claims this 

issue came up in a deposition in July, 2010. However, the request to produce the 

software was not made until the last day of discovery on October 29, 2010. Shafi did 

not dodge any questions at his deposition. Had counsel believed Mr. Shafi was not 

being forthright in his deposition, there was ample time to file a discovery motion. No 

such motion has been filed. If the so-called "diligence" to pursue the software issue 

began in July, 2010, fully eight months have elapsed between the period where such 

diligence began and the presentation of a so-called "protocol."

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In their new complaint, Weidinger and RVT repeat the underlying allegations first 

made in the complaint filed in this case. In both complaints, Braintech and Weidinger 

have alleged that the RELIABOT software sold along with Shafi Inc. was obsolete and 

of no value. Braintech essentially disposed of the RELIABOT software, took no efforts 

to transfer the trademark registration from Shafi to Braintech and allowed the trademark 

registration to lapse. The RELIABOT software was not in the specific list of intellectual 

property sold in the Braintech auction. 

Thus it is apparent that neither Braintech, RVT or Weidinger even have 

possession of a copy of RELIABOT software. If there was a copy of software in their 

possession, a copy could have been turned over to the purported expert and this 

process would have been much farther along by now. To the extent that Braintech 

complains that the original developer of RELIABOT maintained a copy of the software 

code, this is standard practice in the industry. No questions were posed to Mr. Shafi as 

to why the developer maintained a copy of the RELIABOT software code.

Braintech also makes an odd claim that it was unable to make any response to 

the protocol issue because it needed the transcript and the transcription was delayed. 

Brainech fails to explain why it needed a transcript or what portion of Magistrate Judge 

Morgan’s order it did not understand in the absence of a transcript. Braintech also 

claims that Shafi “reneged” on a position expressed to Magistrate Judge Morgan during 

the December 17, 2010 hearing. Shafi has not reneged on anything. Shafi repeats 

here that no claim is made in this case for damages to his reputation or lost opportunity. 

Such claims were set forth in Shafi’s initial disclosures. During the hearing Shafi was 

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ordered to amend the portion of the initial disclosures dealing with personal liability for 

Shafi Inc. debts due to Braintech’s failure to pay such debts as promised. Apparently 

because Shafi did not delete other portions of the initial disclosures no longer of 

relevance, Braintech believes something has been reneged. This kind of petty, time 

wasting, irrelevant drum beating could have been solved by a simple request for 

clarification. It is clarified here, Shafi seeks no damages for lost reputation or lost 

opportunity.

V. CONCLUSION

Based upon the foregoing, the real scenario which is emerging from this effort to 

inspect the software is that neither Braintech, RVT nor Weidinger have any access to 

RELIABOT software, and as competitors, are now desperate to obtain access to not 

only RELIABOT but also new proprietary software developed by Mr. Shafi. Braintech 

also questions how Mr. Shafi could have possibly created new software within a period 

of months following his departure from Braintech. The answer is that Mr. Shafi has 

been in the vision guided robotics software business for over 20 years. This is what 

made Mr. Shafi and his company such an attractive target for acquisition by Braintech in 

the first place. Unfortunately, Braintech was mismanaged by Mr. Weidinger, who has 

absolutely no background in technology, robots or vision guided software. This is 

precisely the reason why Braintech failed. But because it failed and due to the fact that 

Braintech terminated Mr. Shafi, it should come as no surprise to anyone that Mr. Shafi 

returned to the same market from which he has made a living his entire adult life. Shafi 

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will make his software available pursuant to an appropriate protocol when one is 

presented by Mr. McNeill.

Respectfully submitted,

BERRY MOORMAN P.C.

By: s/James P. Murphy

James P. Murphy (P36728)

Attorneys for Defendant/Counterclaim 

Plaintiff

535 Griswold, Suite 1900

Detroit, Michigan 48226

(313) 496-1200

murph@berrymoorman.com

Dated: March 28, 2011

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CERTIFICATE OF SERVICE

STATE OF MICHIGAN )

 )ss

COUNTY OF WAYNE )

I hereby certify that on the 28th day of March, 2011, a copy of the foregoing 

Response of Adil Shafi to Third-Party Defendant Frederick Weidinger’s Fed R. Civ. P. 

37(B) Motion to Compel Counter-Plaintiff Adil Shafi to Produce Certain Source Code 

Required By the Court’s December 17, 2010 Order was filed electronically. Notice of 

this filing will be sent to all parties by operation of the Court’s electronic filing system. 

Parties may access this filing through the Court’s system. 

Respectfully submitted,

BERRY MOORMAN P.C.

By: s/James P. Murphy

James P. Murphy (P36728)

Attorneys for Defendant/Counterclaim 

Plaintiff

535 Griswold, Suite 1900

Detroit, Michigan 48226

(313) 496-1200

murph@berrymoorman.com

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