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,

v.

FREDERICK WEIDINGER, an individual,

Third-Party Defendant.

_____________________________________/

Case No. 09-10454

Hon. Victoria A. Roberts

AMENDED MOTION TO QUASH SUBPOENAS

Non-party, Advenovation, Inc., through its attorneys, Berry Moorman P.C.,

moves, pursuant to Fed. R. Civ. Pro. 45(c) (3) (A) and (B) to Quash Subpoena’s

directed to Advenovation, Inc., its subcontractor, Aptura Machine Vision Solutions/David

Dechow. The subpoenas seek information which is confidential, constitutes trade

secrets and exposes the parties subject to the subpoenas to undue burden and

expense.

I certify, pursuant to local rule that I have attempted to confer with the party

serving the discovery (Braintech) but no response whatsoever was made to an email

communication sent November 10, 2010, outlining Advenovation Inc.’s concerns and

seeking to discuss limitations on the discovery.

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 1 of 11
2

Respectfully submitted,

BERRY MOORMAN P.C.

By: s/James P. Murphy

James P. Murphy (P36728)

Attorneys for Advenovation, Inc.

535 Griswold, Suite 1900

Detroit, Michigan 48226

(313) 496-1200

murph@berrymoorman.com

Dated: November 10, 2010

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 2 of 11
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,

v.

FREDERICK WEIDINGER, an individual,

Third-Party Defendant.

_____________________________________/

Case No. 09-10454

Hon. Victoria A. Roberts

AMENDED MEMORANDUM OF LAW IN SUPPORT OF MOTION

TO QUASH SUBPOENAS

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 3 of 11
ii

TABLE OF CONTENTS

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

I. ISSUES PRESENTED FOR DECISION..........................................................1

II. MOST APPROPRIATE AUTHORITY FOR RELIEF SOUGHT..............................1

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

a. The Subjects of the Subpoenas ...............................................................1

IV. DISCOVERY SOUGHT FROM APTURA MACHINE VISION SOLUTIONS

RELATED TO ADVENOVATION IS PROPRIETARY CONFIDENTIAL

INFORMATION OWNED BY ADVENOVATION................................................2

V. DISCOVERY SOUGHT FROM ADVENOVATION, INC., IS PROPRIETARY,

CONFIDENTIAL AND NOT RELEVANT TO ANY ISSUE IN THIS CASE................4

VI. CONCLUSION...........................................................................................6

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 4 of 11
iii

INDEX OF AUTHORITIES

Rules

Fed. R. Civ. Pro. 45(c)(3)(A) and (B)

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 5 of 11
1

Non Party, Advenovation, Inc., through his attorneys, Berry Moorman P.C.,

submits the following Memorandum of Law in Support of its Motion to Quash

Subpoenas.

I. ISSUES PRESENTED FOR DECISION

1. Whether third party subpoenas served on Aptura Machine Vision

Solutions and Advenovation Inc., should be reviewed under Fed. R. Civ. Pro.

45(c)(3)(A) and (B) to determine if the subpoenas seek confidential information

including trade secrets and whether the subpoenas expose the witnesses to undue

burden.

II. MOST APPROPRIATE AUTHORITY FOR RELIEF SOUGHT

Fed. R. Civ. Pro. 45.

III. INTRODUCTION

On October 29, 2010, Defendant Braintech Inc. (“Braintech”) served third-party

subpoenas on:

1. Aptura Machine Vision Solutions/David Dechow (subpoena attached as

Exhibit 1).

2. Advenovation, Inc. (subpoena attached as Exhibit 2).

A. The Subjects of the Subpoenas

Advenovation is a company owned by Defendant Adil Shafi. Since leaving

Braintech, Mr. Shafi formed his new company, Advenovation, in February 2009, in order

to offer services and products for the vision guided robotic software industry. This is an

industry in which Mr. Shafi has worked and achieved success for over 20 years. Since

forming Advenovation, Mr. Shafi has corroborated on projects with Mr. Dechow and

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 6 of 11
2

Aptura Machine Vision Solutions in particular to write new software code for exploitation

in the vision guided robotics software market. Through the subpoenas, Braintech seeks

production of proprietary software code owned by Advenovation and developed by its

subcontractor Aptura Machine Vision Solutions. The subpoenas also seek information

concerning compensation paid to or received by Adil Shafi and evidence of any

transactions between and among Adil Shafi, Advenovation and Aptura Machine Vision

Solutions. This information is irrelevant and unduly burdensome.

IV. DISCOVERY SOUGHT FROM APTURA MACHINE VISION SOLUTIONS

RELATED TO ADVENOVATION IS PROPRIETARY CONFIDENTIAL

INFORMATION OWNED BY ADVENOVATION

Among other things, the subpoena to Aptura requests production of the following

categories of information and documents from Aptura:

2. Communications between David Dechow and Adil Shafi regarding

collaboration between Advenovation, Inc., and Aptura Machine Vision

Solutions from December, 2008 to present.

3. Documents evidencing salary, benefits, distributions, sales commissions

and/or any other type of remuneration made to Adil Shafi and/or

Advenovation, Inc. by Aptura and/or David Dechow from October 1, 2008

to the present.

4. W-2 forms, 1099 forms, employment applications, personnel file(s),

departmental file(s), and/or performance evaluations for Adil Shafi.

5. Purchase orders and/or contracts between Advenovation, Inc., and Aptura

Machine Vision Solutions and/or David Dechow from December 2008 to

present.

6. Invoices submitted to Advenovation, Inc. from Aptura Machine Vision

Solutions and/or David Dechow and all payment records.

7. Documents evidencing software licenses or source code sold by Aptura

Machine Vision Solutions and/or David Dechow on behalf of

Advenovation, Inc.

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 7 of 11
3

8. Documents evidencing any and all work by Aptura and/or David Dechow

for Advenovation, Inc.

9. Documents evidencing salary, benefits, payments, distributions, nonmonetary perks and any other type of remuneration from Advenovation,

Inc., to Aptura Machine Vision Solutions and/or David Dechow.

10. Produce for inspection and examination any software and source code

created by David Dechow for Advenovation, Inc. and/or Adil Shafi.

Advenovation and its relationship with Aptura did not come into existence until

after Mr. Shafi left the employment of Braintech. Mr. Shafi gave continued deposition

testimony on October 22, 2010. Mr. Shafi did not begin to operate Advenovation until

February, 2007. Shafi Tr. p 494-496. Software code owned by Advenovation code,

created by Aptura for Advenovation, came into existence after Mr. Shafi’s separation

from Braintech. Advenovation worked with Aptura to write software code after

Advenovation was formed in 2009. Shafi Tr. p. 494. All of Mr. Shafi’s activities related

to Advenovation, including any and all work with Aptura all occurred months after Mr.

Shafi’s employment at Braintech terminated. Shafi Tr. pp. 381, 384-390, 494-496. Mr.

Shafi became a sales representative of Aptura in 2010. Shafi Tr. p. 406. In short, since

Advenovation did not even exist until after Mr. Shafi left the employment of Braintech, a

fortiori, Advenovation had no working relationship with Aptura until after it came into

existence. Thus there is no reason to subject Advenovation and its relationship with

Aptura to discovery.

In addition, Counterclaim defendant Weidinger is a competitor of Advenovation.

Weidinger formed a new company, RoboticVisionTech, for the purpose of foreclosing on

the assets of Braintech. RoboticVisionTech is a competitor of Advenovation. There is

no legitimate reason in this case to force Advenovation or Aptura to produce software

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 8 of 11
4

code owned by Advenovation which will be revealed to a competitor as a result of the

subpoenas.

V. DISCOVERY SOUGHT FROM ADVENOVATION, INC., IS PROPRIETARY,

CONFIDENTIAL AND NOT RELEVANT TO ANY ISSUE IN THIS CASE

Among other things, the subpoena to Advenovation requests production of the

following categories of information and documents from Advenovation:

1. Communications between Paul Tomasi and Adil Shafi regarding the

formation of Advenovation, Inc.

2. Documents transferring Advenovation, Inc., from Paul Tomasi to Adil

Shafi.

3. Shareholder agreements and any other documents reflecting ownership

interests in Advenovation, Inc.

4. Financial statements of Advenovation, Inc., from December 2008 to the

present and/or any other documents reflecting the assets, liabilities, sales,

revenues and financial forecasts of Advenovation, Inc.

5. Brochures and other marketing materials sent by Advenovation, Inc., to

customers and potential customers since December 2008.

6. Documents identifying clients/customers of Advenovation, Inc., and the

products sold to or services provided to its customers.

7. Purchase orders between Advenovation, Inc., and its customers from

December 2008 to present.

8. Contracts between Advenovation, Inc., and its customers from December

2008 to present.

9. Invoices submitted to Advenovation, Inc.’s customers and all payment

records.

10. Contracts and/or purchase orders between Advenovation, Inc., and Aptura

Machine Vision Solutions and/or David Dechow.

11. Documents evidencing software licenses or source code sold by

Advenovation, Inc., when and to whom.

12. Documents identifying any business partners of Advenovation, Inc.

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 9 of 11
5

13. Documents evidencing any and all work by David Dechow for

Advenovation, Inc.

14. Documents evidencing salary, benefits, payments, distributions, nonmonetary perks and any other type of remuneration from Advenovation,

Inc., to Adil Shafi.

15. Documents evidencing salary, benefits, payments, distributions, nonmonetary perks and any other type of remuneration from Advenovation,

Inc., to David Dechow.

16. Federal, state and local income tax returns (including all attachments and

schedules), W-2s and 1099 forms for the years 2008 through the present.

17. Produce for inspection and examination the software and source code

which have been sold and/or are being offered for sale by Advenovation,

Inc.

First, requests 1 and 2 seek information subject to the attorney client privilege.

Paul Tomasi was counsel for Advenovation and involved in its incorporation. Second,

Advenovation was only formed after Mr. Shafi was no longer employed by Braintech.

See Transcript citations, supra. All of Mr. Shafi’s activities related to Advenovation

occurred after Mr. Shafi was no longer employed by Braintech. Third, Advenovation is a

competitor of Weidinger’s company RoboticVisionTech and should not under any

circumstances be compelled to produce proprietary software code that Weidinger will

have access to through Braintech.

In short, Advenovation, its business, its software, its dealings with Aptura all post

date Mr. Shafi’s employment with Braintech. Braintech has no claims in this case, only

defenses. Braintech’s defense of the counterclaim of Defendant Shafi have no

relationship to activities or conduct of Shafi or his company after Braintech terminated

Shafi’s employment. Braintech no longer exists, it is a defunct company. Braintech’s

defense is being run and paid for by its insurance company. Its insurance company has

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 10 of 11
6

no stake in this litigation since Braintech’s complaint has been dismissed. Counsel for

Braintech has already informed the Court the policy pays the defense costs but provides

no indemnity. Having no offensive claims, no further existence and no ability to pay any

judgment in this case, the entire exercise of forcing third parties to respond to

Braintech’s irrelevant and specious subpoenas is an exercise in futility.

VI. CONCLUSION

It appears that the sole point in pursuing these subpoenas is to harass Mr. Shafi

and needlessly increase the cost of this litigation. Braintech has no offensive claim in

this case. Information and documents sought by the subpoenas is not even remotely

relevant to the issues in this case. Accordingly, Advenovation requests that this Court

enter a protective order such that the discovery sought by third-party subpoenas not be

had at all.

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: November 10, 2010

Case 2:09-cv-10454-VAR-VMM Document 61 Filed 11/12/10 Page 11 of 11