UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

BRAINTECH, INC., a Nevada corporation, 

 Plaintiff/Counter-Defendant, 

v. 

ADIL SHAFI, an individual, 

 Defendant/Counter-Plaintiff/ 

 Third-Party Plaintiff, 

Case No. 09-10454 

Hon. Victoria A. Roberts 

v. 

FREDERICK WEIDINGER, an individual, 

 Third-Party Defendant. 

________________________________________/ 

MOTION TO COMPEL DISCOVERY 

Plaintiff, Braintech, Inc. (“Braintech”), by its attorneys, Pepper Hamilton LLP, 

submits this Motion to Compel Discovery, pursuant to Fed. R. Civ. P. 33, 34 and 37(a). In 

support of this Motion, Braintech respectfully refers the Court to the supporting brief filed 

herewith. 

Pursuant to the Local Rules of the Eastern District of Michigan, counsel for 

Braintech contacted opposing counsel on November 10, 2009, to request concurrence in the 

relief requested in this Motion; such concurrence was not forthcoming, thus necessitating the 

filing of this Motion. 

WHEREFORE, Braintech, Inc. respectfully requests that this Court grant this 

Motion and (i) order Adil Shafi to serve on counsel for Braintech within five (5) days from the 

date of the Order complete responses to Braintech, Inc.’s First Interrogatories to Adil Shafi, and 

Case 2:09-cv-10454-VAR-VMM Document 22 Filed 12/18/09 Page 1 of 16
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to identify or categorize the responsive documents to Braintech, Inc.’s First Set of Requests for 

Production of Documents to Adil Shafi, in a manner that will allow Braintech to understand 

which documents correspond to each request; and (ii) order Adil Shafi to pay Braintech’s costs 

and attorney’s fees incurred in filing this Motion. 

Dated: December 18, 2009 

Respectfully submitted, 

/s/ James D. VandeWyngearde 

JAMES D. VANDEWYNGEARDE (P58634) 

MARY K. DEON (P63019) 

PEPPER HAMILTON LLP 

100 Renaissance Center, Suite 3600 

Detroit, MI 48243-1157 

(313) 259-7110 

vandewyj@pepperlaw.com 

Attorneys for Braintech, Inc. 

Case 2:09-cv-10454-VAR-VMM Document 22 Filed 12/18/09 Page 2 of 16
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

BRAINTECH, INC., a Nevada corporation, 

 Plaintiff/Counter-Defendant, 

v. 

ADIL SHAFI, an individual, 

 Defendant/Counter-Plaintiff/ 

 Third-Party Plaintiff, 

Case No. 09-10454 

Hon. Victoria A. Roberts 

v. 

FREDERICK WEIDINGER, an individual, 

 Third-Party Defendant. 

________________________________________/ 

 

BRIEF IN SUPPORT OF 

MOTION TO COMPEL DISCOVERY

JAMES D. VANDEWYNGEARDE (P58634) 

MARY K. DEON (P63019) 

PEPPER HAMILTON LLP 

100 Renaissance Center, Suite 3600 

Detroit, MI 48243-1157 

(313) 259-7110 

vandewyj@pepperlaw.com 

Attorneys for Braintech, Inc. 

Case 2:09-cv-10454-VAR-VMM Document 22 Filed 12/18/09 Page 3 of 16
-iTABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................... 1

II. ARGUMENT....................................................................................................................... 1 

A. Shafi’s Document Responses Must Be Supplemented........................................................ 2 

B. Shafi Must Identify And Categorize His Responsive Documents. ..................................... 3 

C. Shafi’s Limited Responses to the Interrogatories are Inadequate. ...................................... 4 

D. Braintech Should be Awarded its Attorney’s Fees Pursuant to Fed. R. Civ. P. 37 

(a)(4)(A)............................................................................................................................... 8 

III. CONCLUSION ................................................................................................................... 8 

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TABLE OF AUTHORITIES

Page(s) 

CASES

Avramidis v Atlantic Richfield Co. 

120 FRD 450 (DC Mass, 1988).............................................................................................5, 6 

Bergman v United States, 

565 F Supp 1353 (WD Mich 1983) ...........................................................................................8 

In re Sulfuric Acid Antitrust Litig., 

231 FRD 351 (ND Ill, 2005)......................................................................................................3 

Johnson v Kraft Foods N. Am., Inc., 

236 FRD 535 (DC Kan, 2006)...................................................................................................3 

Stiller v Arnold, 

167 FRD 68 (ND Ind, 1996)......................................................................................................3 

U.S. v. Marsten Apartments, Inc., 

1997 U.S. Dist. LEXIS 14262 (E.D. Mich. 1997).....................................................................2 

OTHER AUTHORITIES

Fed. R. Civ. P. 33.............................................................................................................................5 

Fed. R. Civ. P. 34.........................................................................................................................3, 4 

Fed. R. Civ. P. 37.............................................................................................................................8 

Case 2:09-cv-10454-VAR-VMM Document 22 Filed 12/18/09 Page 5 of 16
-iiiQUESTIONS PRESENTED 

1. Should Adil Shafi be ordered (i) to serve on counsel for Braintech 

complete responses to Braintech, Inc.’s First Interrogatories to Adil Shafi and (ii) to identify or 

categorize the responsive documents to Braintech, Inc.’s First Set of Requests for Production of 

Documents to Adil Shafi in a manner that will allow Braintech to understand which documents 

correspond to each request? 

2. Should Adil Shafi be ordered to pay Braintech’s costs and attorney’s fees 

incurred in filing this Motion? 

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I. INTRODUCTION

Over four months ago, Braintech, Inc. (“Braintech”) propounded its first set of 

interrogatories and requests for production of documents on Adil Shafi (“Shafi”). The discovery 

set forth specific requests designed to elicit detailed information regarding the dispute between 

the parties. Adil Shafi responded by raising various unfounded objections and providing 

incomplete responses to certain interrogatories. With respect to the document requests, 

Braintech served very pointed and specific requests so as to understand what documents Shafi is 

relying upon in support of certain allegations he has raised. In response, Shafi has produced of 

over eighty (80) boxes of documents without any guidance whatsoever as to which request each 

document responds to. This is not appropriate under the governing rules and does not assist 

Braintech at all in understanding which documents Shafi is relying upon to support his various 

allegations. Accordingly, Shafi should properly be compelled to provide complete responses to 

the interrogatories at issue and should also be compelled to appropriately categorize the 

documents produced in response to Braintech’s document requests. 

II. ARGUMENT

On August 14, 2009, Braintech served Shafi with its First Interrogatories and First 

Request for Production of Documents. (See Exs. A and B). On September 28, 2009, Shafi 

served on Braintech his responses to Braintech’s interrogatories and, on the next day, served his 

responses to Braintech’s document requests. (See Exs. C and D). Shafi subsequently served 

amended responses to Braintech’s Interrogatories on October 13, 2009. (See Ex. E). As 

described in detail below, Shafi’s responses contained a host of unfounded objections and also 

failed to fully respond to many of the discovery requests. Moreover, although Shafi did 

eventually allow for the inspection of documents, approximately eighty boxes full, he failed to 

delineate which documents were responsive to each discovery request. As a result, on November 

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10, 2009, counsel for Braintech sent a detailed letter outlining the deficiencies in Shafi’s 

responses and answers. (See Ex. F). As of the filing date of this Motion, Shafi has failed to 

respond to Braintech’s letter, failed to cure the deficiencies set forth in the letter, and has not 

sought additional time to do so, necessitating the filing of this Motion. 

A. Shafi’s Document Responses Must Be Supplemented.

Throughout Shafi’s responses to Braintech’s document requests, Shafi objects to 

each as “extraordinarily burdensome” and asserts that each request “fails to designate documents 

with reasonable particularity.” (See Ex. D). Shafi further asserts that these requests somehow 

“shift the burden” to Shafi to identify such documents. (See e.g. Ex. D, Responses 1-19; 23-25; 

27, 29-32; 34-41; 43-48; 54; 56-64; 70-71; 73-78). Contrary to Shafi’s objections, each request 

seeks a specific set of documents directly related to the allegations in Shafi’s Second Amended 

Counterclaim. For example, Request No. 1 seeks all documents related to Shafi’s allegation in 

paragraph 12 of the Second Amended Counterclaim that SI and Braintech were competitors in 

the marketplace of VGR software. (See Ex. B at Responses 1). This is an allegation made by 

Shafi and it is completely proper to request any documents that Shafi possesses which support 

this allegation. Shafi cannot meet his burden of specifically showing how the requests are 

“unduly burdensome.” See generally U.S. v. Marsten Apartments, Inc., 1997 U.S. Dist. LEXIS 

14262, *3 (E.D. Mich. 1997)(“Once a party has requested discovery, the burden is on the party 

objecting to show that responding to the discovery request is overly burdensome, or oppressive, 

by submitting affidavits or offering evidence which reveals the nature of the burden.”). Because 

Shafi cannot meet his burden, his objections must be overruled. Accordingly, Braintech requests 

that this Court order Shafi to withdraw his improper objections and, to the extent he has not 

already done so, provide all responsive documents as requested in Requests 1-19; 23-25; 27; 29-

32; 34-41; 43-48; 54; 56-64; 70-71; 73-78. 

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B. Shafi Must Identify And Categorize His Responsive Documents.

Federal Rule of Civil Procedure 34(a) allows the production of documents "which 

are in the possession, custody or control of the party upon whom the request is served." Fed. R. 

Civ. P. 34(a). "A party who produces documents for inspection shall produce them as they are 

kept in the usual course of business or shall organize and label them to correspond with the 

categories in the request." Fed. R. Civ. P. 34(b)(i). Federal Rule Civil Procedure 34(b) places the 

obligation on the responding party to organize and label documents which are produced for 

inspection. Stiller v. Arnold, 167 FRD 68 (N.D. Ind. 1996) (“Producing 7,000 pages of 

documents in no apparent order does not comply with a party's obligation under Rule 34(b).”); 

see also, Glover v. Bd. of Educ., 93 BNA FEP Cas 1239 (N.D. Ill. 2004) (While district court on 

plaintiff's motion to compel did not know amount of documents defendants produced to plaintiff 

to date, it could only assume that it was voluminous and, as such, only fair for defendants to 

organize and label documents they produced; therefore, if defendants had not already done so, 

defendants were ordered to Bates Stamp all documents produced to plaintiff and to indicate 

which documents corresponded to categories requested.); In re Sulfuric Acid Antitrust Litig., 231 

FRD 351 (N.D. Ill. 2005) (Argument that production of 350 boxes of records of business whose 

relevant activities had ceased several years earlier and which had been stored since then in no 

particular order was production of documents "as they are kept in usual course of business" was 

rejected; storing documents may be part of usual course of business, but stored documents are 

not kept in usual course of business within meaning of Fed. R. Civ. P. 34.); Johnson v. Kraft 

Foods N. Am., Inc., 236 F.R.D. 535 (D.C. Kan. 2006) (In employment discrimination case, 

where employer filed motion to compel additional information and documents because plaintiff 

responded to requests for production with thousands of pages of unspecified documents, motion 

was granted because plaintiff failed to provide any information establishing that documents were 

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produced as kept in ordinary course of business under Fed. R. Civ. P. 34(b); thus, he was 

required to organize and label them to correspond with categories in each request.). 

Shafi’s document production to date amounts to nothing more than an 

indiscriminate “document dump” and, as such, Shafi has failed to comply with his obligations 

under Fed. R. Civ. P. 34(b)(i). Here, Shafi produced more than eighty boxes of documents. It is 

entirely unclear which documents are responsive to each request. Because of this unclarity, it is 

also difficult for Braintech to understand to which specific requests Shafi failed to produce 

responsive documents. Shafi has failed to delineate in any way which documents were 

responsive to which document request, thus leaving Braintech to guess at which documents are 

responsive to each specific request. The burden is on Shafi to identify which documents are 

being produced in response to each request; something Shafi has refused to do. As such, 

Braintech respectfully requests that this Court enter an Order requiring Shafi to specifically 

identify which of the document requests each document is responsive to. 

C. Shafi’s Limited Responses to the Interrogatories are Inadequate.

1. Interrogatory Nos. 1-7, 13-14, 16-17:

As an initial matter, Shafi’s responses to Braintech’s Interrogatory Nos. 1-7, 9, 

13-14, and 16-17, fail to comply with Braintech’s Instruction No. 4, which provides as follows: 

When, in response to any of the Interrogatories, the evidence on 

which you will rely to support your contention is contained in 

documents, please identify each such document by Bates number. 

To the extent the evidence is expected to be derived from 

testimony, please identify each witness’s name, and specifically 

describe the expected testimony. 

See Ex. A at Instruction 4. Each of the above-referenced Braintech interrogatories includes 

language specifically requesting Shafi to: “[i]dentify the factual basis and all evidence (pursuant 

to Instruction No. 4) . . .” See Ex. A. This requested information is important to Braintech as it 

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will allow Braintech to understand the basis for the allegations that Shafi has asserted against it. 

Shafi’s responses to these interrogatories fail to provide this specific information sought through 

Instruction No. 4. For example, the answers do not identify the names of witnesses and 

anticipated testimony related to each allegation. 

Similarly, the answers refer generally to documents, but fail to identify each by 

Bates number, or otherwise. For example, Shafi’s response to Interrogatory No. 1, which is 

incorporated into many other responses, refers to “thousands of e-mails” and “hundreds of past 

SHAFI, Inc. files.” To the extent Shafi is relying upon these “thousands of e-mails” and 

“hundreds of past SHAFI, Inc. files” to respond to the interrogatory, his response is insufficient. 

To rely on the business records exception [Fed. R. Civ. P. 33(d)], a party is required to identify 

the specific documents where the answer to the interrogatory may be found: 

(d) Option to Produce Business Records. If the answer to an 

interrogatory may be determined by examining, auditing, 

compiling, abstracting, or summarizing a party's business records 

(including electronically stored information), and if the burden of 

deriving or ascertaining the answer will be substantially the same 

for either party, the responding party may answer by: 

 (1) specifying the records that must be reviewed, in sufficient 

detail to enable the interrogating party to locate and identify them 

as readily as the responding party could; and 

 (2) giving the interrogating party a reasonable opportunity to 

examine and audit the records and to make copies, compilations, 

abstracts, or summaries. 

Fed. R. Civ. P. 33(d). Vague references, such as “emails” and “files,” fail to meet the required 

standards. Id.; see also, Avramidis v Atlantic Richfield Co. 120 FRD 450 (DC Mass, 1988) 

(Where defendant corporation elected to produce business records in response to interrogatories 

and pertinent records were housed in defendant's out-of-state offices in many file cabinets, 

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defendant must specify in sufficient detail records sought by plaintiff and plaintiff could then go 

to out-of-state location to inspection/or copy records.). 

2. Interrogatory No. 8: 

Interrogatory No. 8 seeks specific information regarding each alleged 

representation Shafi contends in Paragraph 122 of the Second Amended Counterclaim was “false 

when made” and which was “part of a scheme and artifice...” Ex. A at Interrogatory No. 8. 

Shafi was asked to identify the person who made each alleged representation, to whom each 

alleged representation was made, who else was present when it was made, the date or 

approximate date it was made, and whether it was made verbally or in writing. Id. Shafi’s 

objection that this request is “burdensome and duplicative” is without merit and should be 

withdrawn. Ex. C at Answer No. 8. Moreover, Shafi’s assertion that “[t]he representations are 

all stated in Count V,” does not appear to be correct as Count V of the Counterclaim does not set 

forth such any representations. Id. Accordingly, Shafi should be compelled to provide all 

information requested in Interrogatory No. 8. 

3. Interrogatory No. 9: 

Interrogatory No. 9 seeks specific information regarding the factual basis which 

supports Shafi’s contentions in Paragraph 126 of the Second Amended Counterclaim. Ex. A at 

Interrogatory No. 9. Shafi’s response merely points generally to unspecified paragraphs and 

“numerous other representations contained in the Second Amended Counterclaim.” Ex. C at 

Answer No. 9. Without specifying the paragraphs and representations to which Shafi is referring, 

the response fails to provide Braintech with any meaningful information. This is not responsive 

to the specific information elicited from the interrogatory. 

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4. Interrogatory Nos. 10, 11, 12: 

Interrogatories 10-12 seek specific information regarding allegations in 

Paragraph 127 of Shafi’s Second Amended Counterclaim as to (i) Weidinger and (ii) Braintech, 

separately. Ex. A at Interrogatories Nos. 10, 11, 12. Shafi’s answers fail to provide the 

requested information and also fail to separately provide information for each Weidinger and 

Braintech, as requested. Ex. C at Answers 10, 11, 12. Additionally, Shafi’s response to 

Interrogatory No. 10 refers to paragraph 126 of the Second Amended Complaint, which is not at 

issue in the interrogatory. Id. at 10. Accordingly, Shafi should be compelled to supplement his 

answers to these interrogatories. 

5. Interrogatory No. 14: 

Shafi’s Amended Answer to Interrogatory 14 relies upon unspecified “multiple 

paragraphs” and “numerous other representations.” Ex. E at Amended Answer No. 14. Again, 

without specifying the paragraphs and representations that Shafi is referring to, the response fails 

to provide Braintech with any useful information. Moreover, the allegations at issue in 

Interrogatory No. 14 are from Paragraph 138 of Shafi’s Second Amended Complaint. Ex. A at 

Interrogatory No. 14. It is therefore unclear what Shafi is referring to by “(it is not 

paragraph 138),” as set forth in his amended response. Ex. E at Amended Answer No. 14. 

6. Interrogatory No. 15: 

In response to Interrogatory No. 15, Shafi states that there are only 142 

paragraphs in his own Second Amended Counterclaim. This is simply not correct. There are 

165 paragraphs in Shafi’s Second Amended Counterclaim. This interrogatory seeks specific 

information related to paragraph 148 of the Second Amended Counterclaim. Shafi’s general 

reference to “numerous other representations pleaded with particularity in the body of the 

counterclaim” is an insufficient response to this interrogatory, which should be supplemented. 

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D. Braintech Should be Awarded its Attorney’s Fees Pursuant to

Fed. R. Civ. P. 37 (a)(4)(A).

Pursuant to Fed. R. Civ. P. 37(a)(2)(B), this Court may compel Shafi to answer 

the outstanding interrogatories and document requests and to produce the requested documents. 

Further, pursuant to Fed. R. Civ. P. 37(a)(4)(A): 

“[T]he Court shall, after affording an opportunity to be heard, 

require the party or deponent whose conduct necessitated the 

motion or the party or attorney advising such conduct or both of 

them to pay the moving party the reasonable expenses incurred in 

making the motion, including attorneys’ fees ....” 

Fed. R. Civ. P. 37(a)(4)(A)(emphasis added); see also, Bergman v. United States, 565 F. Supp. 

1353 (W.D. Mich. 1983)(There is no requirement of bad faith as prerequisite to application of 

sanctions under Rule 37.). Accordingly, Braintech respectfully requests that this Court award its 

attorney’s fees and costs incurred in bringing this motion. 

III. CONCLUSION

For all of the reasons stated above, Braintech, Inc. respectfully requests that this 

Court grant this Motion and (i) order Adil Shafi to serve on counsel for Braintech within five (5) 

days from the date of the Order complete responses to Braintech, Inc.’s First Interrogatories to 

Adil Shafi, and to identify or categorize the responsive documents to Braintech, Inc.’s First Set 

of Requests for Production of Documents to Adil Shafi, in a manner that will allow Braintech to 

understand which documents correspond to each request; and (ii) order Adil Shafi to pay 

Braintech’s costs and attorney’s fees incurred in filing this Motion. 

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Dated: December 18, 2009 

Respectfully submitted, 

/s/ James D. VandeWyngearde 

JAMES D. VANDEWYNGEARDE (P58634) 

MARY K. DEON (P63019) 

PEPPER HAMILTON LLP 

100 Renaissance Center, Suite 3600 

Detroit, MI 48243-1157 

(313) 259-7110 

vandewyj@pepperlaw.com 

Attorneys for Braintech, Inc. 

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CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of December, 2009, I caused to be 

electronically filed the foregoing Motion to Compel Discovery, Brief in Support thereof and this 

Certificate of Service, with the United States District Court, Eastern District of Michigan, and 

notice will be sent by operation of the Court’s electronic filing system to all ECF participants. 

I further certify that a courtesy copy will be hand delivered to the Hon. Victoria 

A. Roberts, Room 123, 231 W. Lafayette Blvd., Detroit, MI 48226. 

s/James D. VandeWyngearde_______________

JAMES D. VANDEWYNGEARDE (P58634) 

#11769890 v2 (135776.2) 

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