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,

v.

FREDERICK WEIDINGER, an individual,

Counterclaim Defendant.

_____________________________________/

Case No. 09-10454

Honorable Victoria A. Roberts

Magistrate Judge Virginia M. Morgan

DEFENDANT ADIL SHAFI’S MOTION TO COMPEL DISCOVERY,

OR ALTERNATIVELY, FOR AN EXTENSION OF DISCOVERY FOR THE PURPOSE

OF TAKING THE DEPOSITION OF FREDERICK WEIDINGER

Defendant, Adil Shafi, through his attorneys, Berry Moorman P.C., hereby moves

for an order compelling discovery or, in the alternative, for an additional extension of

time in order to take the deposition of Frederick Weidinger. In support of this motion,

Shafi avers as follows:

1. This Court held a telephone status conference on June 15, 2010,

concerning the status of this case and the completion of discovery. The order entered

following the status conference required the two principal depositions to be completed in

45 days.

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2. As of this date, despite multiple requests, only two days have been

proposed for Counterclaim Defendant Rick Weidinger’s deposition. The dates proposed

are August 5 and 6, 2010. Shafi’s counsel is not available on August 6, 2010.

Forty-five days expires on July 29.

3. Shafi has diligently sought dates for Weidinger’s deposition since

May 12, 2010, but to date has only been provided with two dates beyond the Court’s

cut-off.

4. Alternatively, Adil Shafi requests that the Court convene a scheduling

conference where the parties will be required to select dates for the deposition of

Mr. Weidinger.

5. Pursuant to local rule, the undersigned certifies that there have been

multiple communications on the subject matter of the relief sought, but such

communications have not resulted in a resolution of the scheduling issue.

Respectfully submitted:

BERRY MOORMAN P.C.

By: __/s/ James P. Murphy________

James P. Murphy (P36728)

Attorneys for Defendant/CounterPlaintiff/Third Party Plaintiff

535 Griswold, Suite 1900

Detroit, Michigan 48226

(313) 496-1200

Dated: July 20, 2010

Case 2:09-cv-10454-VAR-VMM Document 38 Filed 07/20/10 Page 2 of 6
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,

v.

FREDERICK WEIDINGER, an individual,

Counterclaim Defendant.

_____________________________________/

Case No. 09-10454

Honorable Victoria A. Roberts

Magistrate Judge Virginia M. Morgan

BRIEF IN SUPPORT OF DEFENDANT ADIL SHAFI’S MOTION TO COMPEL

DISCOVERY, OR, IN THE ALTERNATIVE, FOR A FURTHER EXTENSION OF

DISCOVERY FOR THE PURPOSE OF TAKING THE

DEPOSITION OF FREDERICK WEIDINGER

Defendant, Adil Shafi, through his attorneys, Berry Moorman P.C., submits the

following brief in support of his motion to compel discovery, or, in the alternative, for a

further extension of discovery.

I. ISSUE FOR DECISION

Whether the Court should compel the Deposition of Frederick Weidinger.

II. MOST APPROPRIATE AUTHORITY

Fed. R. Civ. Pro. 16 and 37.

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III. ARGUMENT

Despite the fact that this case was stayed for almost four months, beginning one

month before the Court held the June 15 status conference, Shafi’s attorney began

communicating with the new attorneys for Braintech and Weidinger to discuss

scheduling. On May 12, 2010, Shafi’s counsel emailed Weidinger’s new counsel

suggesting that dates be coordinated for depositions of both Adil Shafi and Frederick

Weidinger. A response to this email was received, but the offer to undertake scheduling

was declined. On June 8, 2010, Adil Shafi’s counsel once again sent an email to

counsel for Braintech and counsel for Weidinger specifically inviting counsel to discuss

scheduling issues in advance of the status conference with the Court. This email

resulted in no progress.

Following the status conference, on June 22, Shafi’s counsel circulated an email

discussing discovery issues, including Rule 30(b)(6) topics and inviting the attorneys to

“plug in dates or at a minimum block some time off so that we can schedule these deps

no later than mid-July.” There was no response to the June 22 email.

Given the lack of response, on June 28, Adil Shafi’s counsel prepared notices of

deposition scheduling Frederick Weidinger’s deposition for July 15 and 16, 2010 (copies

attached as Exhibit A). One week later, on July 2, 2010, Braintech’s counsel advised

that Mr. Weidinger was not available for deposition on July 15 or 16.

Despite prior multiple requests, it was not until July 7, 2010, before there was

any response from Frederick Weidinger’s counsel (Mr. Greeves) regarding scheduling.

On July 8, 2010, Shafi’s counsel placed a telephone call to Mr. Greeves and again

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requested that Mr. Greeves provide dates for the deposition of Fredrick Weidinger. One

week later, on July 14, 2010, dates were proposed for Mr. Weidinger’s deposition for

August 5 and 6, 2010 (the parties have agreed to 1.5 days of deposition for each

principal). Counsel for Weidinger was immediately informed that Shafi’s counsel had a

preexisting matter in Wayne Circuit Court for most of the morning on August 6, 2010

and could not change that date in order to proceed with the deposition. In addition, this

Court’s Order of June 15, 2010, required that the depositions be completed no later

than July 30, 2010. No alternate dates have since been provided.

There is very little time left in the month to schedule Mr. Weidinger’s deposition.

Despite the diligent efforts of Shafi’s counsel to obtain firm, committed dates to take

Mr. Weidinger’s deposition, only two proposed dates have been provided since Shafi’s

counsel first undertook to communicate with opposing counsel on May 12, 2010, and

those dates are outside of the Court ordered deadline.

Defendant Shafi left his schedule wide open through the month of July in order to

appear for a deposition. It is also important that Mr. Shafi attend Mr. Weidinger’s

deposition as a party. Mr. Shafi is not available during most of the month of August due

to a planned vacation and other work commitments for his new startup venture. As a

result of this, it is likely discovery will have to continue for at least another 45-day period

in order to obtain dates for Mr. Weidinger (so that Mr. Shafi can attend with all counsel

of record).

Accordingly, Defendant Shafi requests that the Court convene a status

conference and permit some additional period for discovery. Despite the efforts of Shafi

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and his counsel to take the deposition of Frederick Weidinger, there has been very little

cooperation. If scheduling problems persist, Defendant Shafi requests that the Court

select the dates and require parties to attend after a status conference.

Respectfully submitted,

BERRY MOORMAN P.C.

By: s/James P. Murphy

James P. Murphy (P36728)

Attorneys for Defendant

535 Griswold, Suite 1900

Detroit, Michigan 48226

(313) 496-1200

murph@berrymoorman.com

Dated: July 20, 2010

CERTIFICATE OF SERVICE

I hereby certify that on July 20, 2010, J. P. Murphy, being first duly sworn, served

Defendant Adil Shafi’s Motion to Compel Discovery, or Alternatively, for an Extension of

Discovery for the Purpose of Taking the Deposition of Frederick Weidinger, Brief in

support of same, and Proof of Service of same, via email and First Class mail upon:

Anne Bagno Widlak, Esq.

Nemeth Burwell, P.C.

200 Talon Centre, Suite 200

Detroit, MI 48207-5199

awidlak@nemethburwell.com

Susan D. Koval, Esq.

Nemeth Burwell, P.C.

200 Talon Centre, Suite 200

Detroit, MI 48207-5199

skoval@nemethburwell.com

Geoffrey J. Greeves, Esq.

Pillsbury Winthrop Shaw Pittman LP

2300 N. Street, N.W.

Washington, DC 20037

geoffrey.greeves@pillsburylaw.com

__/s/ James P. Murphy________

James P. Murphy (P36728)

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