IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,

a Michigan corporation,

Plaintiff,

Case No. 2:09-CV-10756

vs. Hon. Marianne O. Battani

NAVIGATION CATALYST SYSTEMS, INC.,

 a Delaware corporation; BASIC FUSION, INC.,

 a Delaware corporation; CONNEXUS CORP.,

 a Delaware corporation; and FIRSTLOOK, INC.,

 a Delaware corporation,

Defendants.

______________________________________________________________________

Enrico Schaefer (P43506)

Brian A. Hall (P70865)

TRAVERSE LEGAL, PLC

810 Cottageview Drive, Unit G-20

Traverse City, MI 49686

231-932-0411

enrico.schaefer@traverselegal.com

brianhall@traverselegal.com

Lead Attorneys for Plaintiff

Anthony P. Patti (P43729)

HOOPER HATHAWAY, PC

126 South Main Street

Ann Arbor, MI 48104

734-662-4426

apatti@hooperhathaway.com

Attorneys for Plaintiff

William A. Delgado (admitted pro hac vice)

WILLENKEN WILSON LOH & LIEB LLP

707 Wilshire Boulevard, Suite 3850

Los Angeles, CA 90017

(213) 955-9240

williamdelgado@willenken.com

Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)

Benjamin K. Seffans (P69712)

BUTZEL LONG, PC

150 West Jefferson, Suite 100

Detroit, MI 48226

(313) 225-7000

stasevich@butzel.com

steffans@butzel.com

Local Counsel for Defendants

______________________________________________________________________

MOTION FOR AN ORDER COMPELLING DISCLOSURE AND FOR SANCTIONS

FOR DEFENDANT’S FAILURE TO FILE ADEQUATE INITIAL DISCLOSURES AS

REQUIRED UNDER F.R.C.P 26(a)

Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al Doc. 29

Dockets.Justia.com
Page 2 of 7

NOW COMES Plaintiff, The Weather Underground, Inc. (“Plaintiff”), by and

through its primary counsel, Traverse Legal, PLC, and pursuant to F.R.C.P. 26(a)(1)(A)

and (E), states and follows for its Motion for Sanctions as follows:

1. Plaintiff and Defendant Navigation Catalyst Systems, Inc. (“Defendant”)

participated in the required Rule 26(f) conference on December 15, 2009.

2. On January 5, 2010, Plaintiff submitted its Joint Report under F.R.C.P.

26(f)(2). F.R.C.P. 26(a)(1) provides that the due date for initial disclosures is 14 days

after the Parties’ Rule 26(f) conference, or December 29, 2009.

3. Plaintiff served its initial disclosures on Defendant Navigation Catalyst

Systems, Inc. (“Defendant”), on or before December 29, 2009. (See Exhibit A.)

Defendant requested that its due date be extended to January 4, 2010, which was

informally agreed to by Plaintiff’s counsel.

4. Defendant served its initial disclosures on January 4, 2010. (See Exhibit

B.)

5. Defendant’s initial disclosures list one witness, Seth Jacoby, President of

Defendant.

6. Defendant’s initial disclosures list two documents

7. On January 8, 2010, Plaintiff’s undersigned counsel, Enrico Schaefer, in

good faith, left a voicemail message with Defendant’s counsel, William Delgado,

proposing a stipulated order requiring supplemental disclosures within 14 days in order

to avoid Court action and certifies to the same pursuant to F.R.C.P. 37(a)(1). Mr.

Delgado had not returned this call or agreed to a stipulated order as of the filing of this
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motion on Monday, January 11, 2010. As such, Plaintiff has been forced to seek this

Court’s intervention with this motion to compel and for sanctions.

8. Plaintiff believes Defendant’s initial disclosures are purposely incomplete

and purposefully vague.

9. Plaintiff further believes Defendant’s actions are occasioned by its

intention to delay discovery, including the depositions of witnesses, and ultimately delay

this case.

10. F.R.C.P. 37(a)(3)(A) authorizes a party to move to compel disclosures.

11. F.R.C.P. 37(c)(1) provides for sanctions for a failure to adequately

disclose under F.R.C.P. 26(a) including prohibiting such party from utilizing evidence

and witnesses subsequently disclosed to support motions or at trial.

12. Plaintiff further seeks this Court issue the entry of an appropriate order:

a. Precluding Defendant from utilizing witnesses and information the Court

later finds were not and should have been disclosed as required under

Rule 26(a) or, alternatively, to supplement its disclosures within seven (7)

days, and

b. Assess such other sanction or penalty as the Court deems appropriate

including attorney fees.

WHEREFORE, Plaintiff requests the Court grant its Motion to Compel

Disclosures and for Sanctions, together with an award of costs and attorneys’ fees

pursuant to F.R.C.P. 37(c)(1)(A) occasioned by the filing of the Motion.
Page 4 of 7

BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR SANCTIONS

FOR DEFENDANT’S FAILURE TO FILE INITIAL DISCLOSURES

AS REQUIRED UNDER F.R.C.P 26(a)

Brief Concise Statement of Issues Presented

1, Whether and in what form should Defendant be sanctioned for failure to file

complete initial disclosures as provided for under F.R.C.P. 26(a)(1).

ARGUMENT

F.R.C.P. 26(a)(1)(A) provides that a party, without awaiting a discovery request,

must provide the other party initial discovery disclosures, including but not limited to, the

names of witnesses, documents and other tangible items a party may use to support its

claims or defenses, and other disclosures, as follows.

(a) Required Disclosures.

(1) Initial Disclosures.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise

stipulated or ordered by the court, a party must, without awaiting a discovery

request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each

individual likely to have discoverable information — along with the subjects of

that information — that the disclosing party may use to support its claims or

defenses, unless the use would be solely for impeachment;

(ii) a copy — or a description by category and location — of all documents,

electronically stored information, and tangible things that the disclosing party has

in its possession, custody, or control and may use to support its claims or

defenses, unless the use would be solely for impeachment;

....

(iv) for inspection and copying as under Rule 34, any insurance

agreement under which an insurance business may be liable to satisfy all

or part of a possible judgment in the action or to indemnify or reimburse for

payments made to satisfy the judgment. (Emphasis Added)
Page 5 of 7

F.R.C.P. 26(a)(1)(E) requires that “[a] party must make its initial disclosures based on

the information then reasonably available to it.” F.R.C.P. 37(a)(3)(A) empowers a party

to move to compel disclosures and appropriate sanctions when the other party fails to

do so.

Defendant was served with the pending lawsuit on March 9, 2009. After almost

10 months, there must be more than one witness and two documents Defendant ‘may

use’ to support its proposed defenses. Defendant’s initial disclosures evidence a failure

or a refusal to comply with the Court Rules. Such a failure warrants and order

precluding any witnesses or documents later identified which this Court finds violated

this rule or, alternatively compelling adequate disclosures. Moreover, such a failure

warrants sanctions by this Court.

F.R.C.P. 37(c)(1) provides:

(1) Failure to Disclose or Supplement.

If a party fails to provide information or identify a witness as required by

Rule 26(a) or 26(e), the party is not allowed to use that information or

witness to supply evidence on a motion, at a hearing, or at a trial, unless

the failure was substantially justified or is harmless. In addition to or

instead of this sanction, the court, on motion and after giving an

opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's

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).

Defendant’s can offer no justifiable excuse in refusing to provide adequate

disclosures. To the extent Defendant deems these initial disclosures to be complete,
Page 6 of 7

this Court should prohibit Defendant from using any witness or document that was not

initially disclosed to supply evidence of any defense at any stage in this litigation. In

addition, this Court should significantly restrict any attempt by Defendant to circumvent

these Rules by supplementing with further disclosures that were reasonably available to

it as of January 4, 2010. Finally, we request that this Court award Plaintiff’s its costs

and attorney’s fees occasioned by the filing of this Motion.

Respectfully submitted this 11th day of January, 2010.

/s/Enrico Schaefer___________________

Enrico Schaefer (P43506)

Brian A. Hall (P70865)

TRAVERSE LEGAL, PLC

810 Cottageview Drive, Unit G-20

Traverse City, MI 49686

231-932-0411

enrico.schaefer@traverselegal.com

Lead Counsel for Plaintiff

Anthony P. Patti (P43729)

HOOPER HATHAWAY, PC

126 South Main Street

Ann Arbor, MI 48104

734-662-4426

apatti@hooperhathaway.com

Attorneys for Plaintiff
Page 7 of 7

CERTIFICATE OF SERVICE

I hereby certify that on the 11th day of January, 2010, I electronically filed

the foregoing paper with the Court using the ECF system which will send

notification of such filing to the following:

Enrico Schaefer (P43506)

Brian A. Hall (P70865)

TRAVERSE LEGAL, PLC

810 Cottageview Drive, Unit G-20

Traverse City, MI 49686

231-932-0411

enrico.schaefer@traverselegal.com

brianhall@traverselegal.com

Lead Attorneys for Plaintiff

Anthony P. Patti (P43729)

HOOPER HATHAWAY, PC

126 South Main Street

Ann Arbor, MI 48104

734-662-4426

apatti@hooperhathaway.com

Attorneys for Plaintiff

William A. Delgado (admitted pro hac)

WILLENKEN WILSON LOH & LIEB LLP

707 Wilshire Boulevard, Suite 3850

Los Angeles, CA 90017

(213) 955-9240

williamdelgado@willenken.com

Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)

Benjamin K. Seffans (P69712)

BUTZEL LONG, PC

150 West Jefferson, Suite 100

Detroit, MI 48226

(313) 225-7000

stasevich@butzel.com

steffans@butzel.com

Local Counsel for Defendants

/s/Enrico Schaefer___________________

Enrico Schaefer (P43506)

Brian A. Hall (P70865)

TRAVERSE LEGAL, PLC

810 Cottageview Drive, Unit G-20

Traverse City, MI 49686

231-932-0411

enrico.schaefer@traverselegal.com

Lead Counsel for Plaintiff