4-6 Sanctions Order

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IN THE UNITED STATES DISTRICT COURT oj

FOR THE NORTHERN DISTRICT OF GEORGI ATLANTA DIVISION

INSITUFORM TECHNOLOGIES ) INC et aI )

) Plaintiffs )

) CIVIL ACTION FILE v )

) NO 108-cv-333-TCB AMERIK SUPPLIES INC et aI )

) Defendants )

) v ) FILED UNDER SEAL

) COSMIC-SONDERMASCHINENBAU ) GMBH et aI )

) Third-Party Defendants )

ORDER

This matter is before the Court on Plaintiffs Insituform Technologies

Inc and INA Acquisition Corps CInsituform) motion for reconsideration

modification andor clarification of the Courts February 19 2010

Order [587] Insituforms submission of attorneys fees and expenses [580]

and Feldman Gale PAs emergency motion to withdraw as counsel for

Cosmic Sondermaschinenbau GmbH and Cosmic TopHat LLC [606]

I Insituforms Motion for Reconsideration

A Background

On March 3 2010 Insituform filed its motion for reconsideration

modification and or clarification [587] In its motion Insituform raises

three issues regarding the February 19 2010 order

First Insituform requests clarification regarding the Courts order

that [a]ll costs associated with the re-inspection [of Cosmics Austrian

facility] shall be borne by Cosmic Insituform asserts that it believes the

Court intended for Cosmic to pay for all of Insituforms fees and expenses

related to the re-inspection but requests clarification on this issue

Second Insituform requests reconsideration of the Courts ruling

regarding Insituforms disclosure of information about Richard Beck In

the February 19 2010 order the Court found that Insituform failed to

adequately disclose information about Beck that was responsive to Cosmics

discovery requests and sanctioned Insituform $7500 for its failure to fully

respond and supplement its responses to the discovery requests

2

Insituform asserts that the Courts finding constitutes clear error It

contends that the Order did not provide which discovery request

(interrogatory nineteen or twenty-one) gave rise to Insituforms duty to

disclose details about Becks work with Cosmic Insituform asserts that

(1) Beck did not participate in Insituforms development of the technology

claimed in the patents-in-suit and therefore is not responsive to

interrogatory twenty-one and (2) Insituforms disclosure of Beck in

response to interrogatory nineteen is consistent with Becks declaration

acknowledgement forms and disqualification briefing stating that Beck was

not employed by Insituform prior to 1998 Further Insituform asserts that

even if the Court were to find that Insituform failed to provide proper

discovery responses regarding Beck the Court should not sanction

Insitufornl because Cosmic (1) never met and conferred with Insituform

regarding its responses (2) never moved to compel supplemental

responses and (3) was not prejudiced

Third Insituform requests that the Court modify its order regarding

additional destructive testing of a sample Cosmic Top Hat In the February

19 order the Court found that Insituform improperly requested Dr Richard

Parnas to conduct destructive testing on the Top Hat without first seeking

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leave of the Court to do so and allowing Cosmic to observe the testing As a

consequence the Court ordered Insituform to instruct Parnas to repeat his

tests on another Top Hat sample should Cosmic so request The Court

ordered that all costs associated with the test shall be borne by Insituform

In the motion Insituform first requests that during the re-inspection

Cosmic be ordered to produce at no cost to Insituform three additional

Top Hat samples for Parnas to test in order to determine whether the Top

Hat is produced in a manner consistent with Cosmics stated method of

manufacture Additionally Insituform requests that the Court reconsider

its order that Insituform pay Cosmics expenses associated with the

retesting by Parnas Insituform contends that the testing was only done in

order to confirm Insituforms suspicions regarding the accuracy of Cosmics

stated method of manufacture for its Top Hats and that as a result

Insituform should not have to bear Cosmics expenses associated with a reshy

testing of the Top Hats

Additionally Insituform requests that the Court order Steve

Vossmeyer to re-conduct destructive testing that he performed on a Top

Hat sample Insituform contends that Cosmic relies on Voss meyers

declaration testimony and destructive testing in asserting that its product

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does not infringe the patents-in-suit and that Insituform and its expert are

entitled to observe Vossmeyers testing in order to determine the veracity of

his testimony

On March 10 2010 Cosmic filed its response [602] On March 15

Insituform filed its reply [612] In its reply brief Insituform for the first

time requests that the Court modify the order regarding the site reshy

inspection as follows (1) permit Insituform to videotape the inspection

after screens obstructing irrelevant portions of the facility are put in place

(2) allow Insituform to review computer files to see European documents

that the Court has ordered be produced as Cosmic keeps them in the

ordinary course of its business (3) require Cosmic to produce three Top

Hats with sheets of fabric and three Top Hats without sheets of fabric and

(4) allow Insituform to inspect all parts of the manufacturing process to

fully verify Kuebels testimony regarding production including verifying

how employees know whether to make Top Hats with or without sheets of

fabric Additionally Insituform moves to compel Cosmic to produce

forensically imaged copies of Cosmics hard drives

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B Discussion

1 Legal Standard

The Federal Rules of Civil Procedure do not specifically authorize

motions for reconsideration Local Rule 72 provides that motions for

reconsideration are not to be filed as a matter of routine practice but only

when absolutely necessary LR 72E ND Ga A party may move for

reconsideration only when at least one of the following three elements

exists (1) the discovery of new evidence (2) an intervening development or

change in the controlling law or (3) the need to correct a clear error or

manifest injustice Preserve Endangered Areas of Cobbs History Inc v

United States Army Corps of Engrs 916 F Supp 1557 1560 (ND Ga

1995) Because reconsideration may only occur under those limited

circumstances a motion for reconsideration is not an opportunity for the

moving party to instruct the court on how the court could have done it

better the first time Id In other words a party may not employ a

motion for reconsideration as a vehicle to present new arguments or

evidence that should have been raised earlier introduce novel legal

theories or repackage familiar arguments to test whether the Court will

change its mind Brodgdon ex rel Cline v Natl Healthcare Corp 103 F

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Supp 2d 1322 1338 (ND Ga 2000) see also Godby v Electrolux Corp

Nos 193-cv-0353-0DE 193-cV-126-0DE 1994 WL 470220 (ND Ga

May 25 1994) (A motion for reconsideration should not be used to

reiterate arguments that have previously been made [It is an improper

use of] the motion to reconsider to ask the Court to rethink what the Court

has already thought through-rightly or wrongly) (citations omitted) In

re Hollowell 242 BR 541 542-43 (Bankr ND Ga 1999) (Motions for

reconsideration should not be used to relitigate issues already decided or as

a substitute for appeal Such motions also should not be used to raise

arguments which were or could have been raised before judgment was

issued) (citation omitted)

2 Analysis

After careful consideration the Court will grant in part and deny in

part Insituforms motion

The first issue on which Insituform seeks clarification is the Courts

order that Cosmic is to bear all costs associated with Insituforms reshy

inspection of Cosmics Austrian facility The Court apologizes for its lack of

clarity on this issue In directing Cosmic to pay costs associated with the

re-inspection the Court orders that Cosmic shall bear the following fees

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expenses and costs (1) fees for one attorney one interpreter and one

expert appearing on behalf of Insituform (2) all travel and accommodation

expenses for the aforementioned Insituform representatives and (3) all

expenses and costs associated with the depositions of Cosmic employees

taken during the site inspection

The next issue raised by Insituform pertains to the Courts ruling that

Insituform improperly failed to disclose information about Richard Beck

After careful consideration the Court concludes that based on the

information before the Court the Court was correct in concluding that

Insituform failed to properly provide sufficient information regarding

Becks relationship with Insituform Specifically the Court finds that

Becks relationship as an employee or Insituform and as a high-level

manager for an Insituform licensee should have been disclosed in response

to Cosmics interrogatory nineteen The Court notes that its conclusion is

not premised on a determination that Becks declaration is true or false but

instead turns on the Courts conclusion that information disclosed by

Insituform in its motion to disqualify Beck [536] indicates that Becks

relationship with Insituform far exceeds a two-week period of employment

as disclosed in Insituforms answer to interrogatory nineteen

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However Insituforms assertion that Cosmic never met and conferred

regarding the disputed interrogatories and never moved to compel prior to

seeking sanctions cannot be disregarded These arguments were not raised

in the original briefing on Cosmics motion for sanctions and thus are

generally considered improper grounds for a motion for reconsideration

See Brodgdon 103 F Supp 2d at 1338 (a party may not employ a motion

for reconsideration as a vehicle to present new arguments or evidence that

should have been raised earlier ) Nonetheless the Court finds that in

light of the Courts strong policy in favor of the parties making good faith

efforts at resolving discovery disputes prior to seeking intervention from

the Court the award of sanctions to Cosmic and against Insituform must be

vacated Thus Insituforms award of attorneys fees and expenses from

Cosmic will not be reduced by $7500

Insituforms next request is that the Court modify its order regarding

the destructive testing of the Cosmic Top Hat The Court is unpersuaded by

Insituforms arguments as to the motives behind Parnass testing of the Top

Hat sample and therefore will not modify its order requiring Insituform to

bear Cosmics fees and expenses incurred in observing Parnass repeat of

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the destructive test on the Top Hat Cosmic shall be permitted to have one

attorney and one expert present for the testing of the Top Hat sample

Additionally the Court will not grant Insituforms request with

respect to Steve Vossmeyers testing of the Top Hat sample Importantly

the issues regarding the procedures pertaining to Vossmeyers testing

were not raised as a part of the briefing on Insituforms motion for default

and Cosmics motion for sanctions Further Insituform failed to meet and

confer on this issue prior to raising it with the Court Thus this matter is

improperly before the Court as a part of Insituforms motion for

reconsideration and the Court will not grant Insituform the relief

requested

Finally with respect to Insituforms requests regarding additional

details regarding the site re-inspection the Court finds that due to Feldman

Gales motion to withdraw Cosmic has not had an opportunity to properly

meet and confer with Insituform regarding these requests and has not had

an opportunity to respond to those issues newly raised in Insituforms reply

brief Thus the Court will reserve ruling on these issues until such a time

as Cosmics counsel has had an opportunity to respond

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II Insituforms Submission of Attorneys Fees and Expenses

In the February 19 Order the Court determined that it would award

Insituform attorneys fees on the following issues on which it prevailed

(1) the December 2008 site inspection (2) Cosmics response to

interrogatory twenty-one (3) Cosmics allegations in its motions for

sanctions regarding alleged lies by Insituform and its counsel and (4)

Cosmics motion to strike

On February 26 Insituform filed its submission of attorneys fees and

expenses [581] On March 5 Cosmic filed its response to the submission of

attorneys fees and expenses [590] and on March 8 Cosmic filed its

amended response [595] On March 10 Insituform filed its reply in

support of its submission of attorneys fees and expenses [601]

As an initial matter in its reply brief Insituform requested

clarification from the Court regarding whether the Court was awarding

sanctions pursuant to FED R CIV P 37 or the Courts inherent powers On

page sixty-nine of the February 19 Order the Court indicated that it was

awarding attorneys fees and expenses pursuant to FED R CIV

P37(b)(2)(C) However as Insituform correctly points out the issues

raised by Cosmic in its motion for sanctions regarding Insituforms alleged

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lies did not pertain to any discovery abuse and thus any award of attorneys

fees related to this motion must be subject to the Courts inherent powers

Thus the Court will award attorneys fees pursuant to FED R Crv P 37 and

the Courts inherent powers

In its submission of attorneys fees and expenses Insituform requests

$54987549 in attorneys fees and expenses In its response Cosmic does

not dispute that Insituforms attorney billing rates are reasonable that the

work was actually performed or that Insituform paid for the services

Instead Cosmic asserts a number of arguments that it contends require the

requested fees to be reduced

After careful consideration the Court finds that the majority of

Cosmics arguments are without merit Namely the Court will not reduce

fees due to allegations that (1) there is a lack of a causal link between the

fees and the failure to comply (2) descriptions of the work performed are

insufficient to permit the Court to ascertain whether the work was related

to the sanctioned offenses (3) work would have been performed regardless

of Cosmics sanctioned conduct (4) work was redundant or called for

duplication of efforts and (5) work was actually ministerial in nature

However the Court agrees with Cosmics contention that certain work was

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excessive and unnecessary and therefore will reduce Insituforms request

for fees by $7376752 Additionally the Court agrees that fees associated

with work by Matthew Braunel and Nadine Herrmann in preparing for

their personal depositions as fact witnesses are not recoverable and thus

Insituforms request for fees will further be reduced by $31959

Based on the foregoing the Court will award Insituform attorneys

fees and expenses in the amount of $44414897 Cosmic shall tender

payment to Insituform on or before May 3 2010

III Feldman Gales Emergency Motion to Withdraw

On March 122010 Feldman Gale PA filed an emergency motion to

withdraw as counsel for Defendants Cosmic Sondermaschinenbau GmbH

and Cosmic TopHat LLC [606] In the motion Feldman Gale states that an

unspecified irreconcilable difference has arisen between the firm and

Cosmic such that Feldman Gale should be permitted to withdraw and

counsel Additionally Feldman Gale asserts Cosmic is unable to meet its

financial obligations and that this inability to pay is sufficient justification

for Feldman Gales motion to withdraw

On March 16 AMerik Supplies Inc filed a response to the motion

[614] In its response AMerik states that it has no objection to the motion

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to withdraw provided that Feldman Gales withdrawal from the case does

not delay a ruling on AMeriks motion for entry of final judgment [428]

Specifically AMerik notes that briefing on the motion for entry of final

judgment has been completed and that Cosmics stated reasons for

withdraw do not appear to be related to the motion Thus AMerik requests

that Feldman Gales motion should be allowed except to the extent that

Feldman Gales representation may be required to facilitate the Courts

ruling on the motion for entry of final judgment

On March 24 Insituform filed its response to Feldman Gales motion

Although Insituform asserts that Feldman Gale has provided no proof

regarding the alleged irreconcilable difference and Cosmics inability to pay

Insituform does not appear to object to Feldman Gales withdrawal

However Insituform does request the following conditions be placed on

Feldman Gales withdrawal

1) Feldman Gale remains in the case until (a)(i) the site inspection of Cosmics Austrian facility occurs or Oi) until Cosmic advises the Court that it refuses to comply with Court Ordered site inspection of its Austrian facilities and (b) if the Court deems necessary for the limited purpose of ruling on AMeriks motion for entry of final judgment

2) Feldman Gale produces documents for the Courts in camera review which documents show the nature of the irreconcilable conflict and also when and how the irreconcilable conflict arose so that the Court may determine

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whether the documents are privileged if the Court finds that the documents are not privileged then the Court orders that those documents be produced to ITIs counsel and deemed attorneys eyes only under the protective order and

3) The Court continues to maintain jurisdiction over Feldman Gale and its attorneys and Feldman Gale and its attorneys concede that such jurisdiction exists until this action is completely concluded through all appeals

With respect to the third and final condition Insituform asserts that it

suspects that Feldman Gales irreconcilable differences with Cosmic may

pertain to its offer on behalf of Cosmic to allow Insituform to re-inspect

Cosmics facilities Insituform contends that if it turns out that Feldman

Gale lacked the authority to offer a re-inspection on behalf of Cosmic the

Court should be aware of such facts in order to gauge to what extent

Feldman Gale itself should be jointly and severally liable for any sanctions

imposed on Cosmic by the Court andor whether additional sanctions

should be imposed for the deliberate withholding of Cosmics true

intentions regarding an additional site inspection

After careful consideration the Court finds that Feldman Gale has

substantially complied with the requirements of Local Rule 831(E) and

should be permitted to withdraw as counsel Additionally Court will not

condition Feldman Gales withdraw as requested by Insituform

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With respect to the first requested condition regarding the site

inspection this condition is rendered moot given the Courts decision below

to enter a stay in this action

With respect to the second requested condition regarding an in

camera review of communications between Cosmic and Feldman Gale

regarding the irreconcilable difference the Court finds that such a review is

unnecessary The Court is satisfied with Feldman Gales representation as

officers of this Court that it can no longer proceed as counsel for Cosmic

Additionally the Court will not order Feldman Gale to produce any

attorney-client privileged communications regarding the irreconcilable

differences to Insituform

Finally with respect to the final requested condition that the Court

retain jurisdiction over Feldman Gale pending the complete resolution of

this case the Court finds this condition to be unwarranted and

unnecessary The Courts February 19 order made clear that the Court was

sanctioning Cosmic not its attorneys for its improper conduct during

discovery There is nothing to suggest that Feldman Gale has been acting

outside of the scope of its authority as counsel for Cosmic and the Court

will not retain jurisdiction over Feldman Gale due to Insituforms mere

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suspicions Moreover the issue of Feldman Gales authority to offer a

re-inspection is of no moment as the re-inspection is to occur as a result of

a Court order not an agreement between the parties Consequently there

is no need for the Court to retain jurisdiction over Feldman Gale at this

time

Thus the Court will grant Feldman Gales emergency motion to

withdraw as counsel for Cosmic Sondermaschinenbau GmbH and Cosmic

TopHat LLC

IV Notice of Rejection of Claims within the Patents-In-Suit by the United States Patent and Trademark Office

On March 23 2010 Cosmic filed notice of rejection of claims within

the patents-in-suit by the United States Patent and Trademark Office [616]

The notice pertains to a pair of non-final office action letters issued by the

USPTO on March 10 2010

Insituforms original complaint in this action asserts that Cosmics

accused products infringe three patents (1) the 341 patent which relates to

a liner of resin absorbent material for lining a lateral passageway and an

apparatus and method for installing this liner (2) the 114 patent which

relates to a liner of resin absorbent material for lining a lateral passageway

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and (3) the 832 patent which relates to a method of lining a lateral pipe

Cosmic has filed a counterclaim seeking in part declaratory judgment of

non-infringement and invalidity ofboth patents

On December 16 2008 a defendant in another pending matter

Insituform Technologies Inc v Liqui-Force Services (USA) Inc 2008shy

cV-11916-LPZ-MJH (ED Mich) CMichigan Litigation) requested ex parte

reexamination of all claims of the 114 patent On February 11 2009 the

USPTO granted the request for ex parte reexamination On March 3 2009

the Michigan Litigation defendant requested ex parte reexamination of

claims 1-4 6-12 and 14-16 of the 832 patent On May 15 2009 the

USPTO granted the request for reexamination

On March 10 2010 the USPTO issued two non-final office actions

regarding the reexamination proceedings of the 114 and 832 patents With

respect to the 114 patent the examiner rejected all claims of that patent as

anticipated by prior art pursuant to 35 USC 102(b) Additionally the

examiner rejected all claims of the 114 patent as obvious under 35 USC

sect 103(a) With respect to the 832 patent the examiner found that claims 1shy

4 8-12 and 14-16 are patentable but rejected claims 6 and 7 as anticipated

by prior art pursuant to 35 USC sect 102(b)

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The decision to stay a lawsuit pending the completion of

reexamination proceedings is within the inherent discretionary power of

the district courts Grayling Indus Inc v GPAC Inc 19 USPQ 2d

1872 1873 (ND Ga 1991) Given that the USPTO has preliminarily

rejected the 114 patent in its entirety and has rejected two claims in the

832 patent the Court finds that in order to conserve judicial resources a

stay should be entered in this action The Courts conclusion is particularly

motivated by the fact that much of this action could be rendered moot if the

disputed claims are ultimately declared unpatentable

However the stay in this action does not have any bearing on the

parties responsibility to comply with the Courts order regarding the

deadline for Cosmic to tender payment to Insituform for attorneys fees and

expenses incurred in relation to Insituforms motion for default

v Conclusion

For the foregoing reasons Insituforms motion for reconsideration

clarification andor modification is GRANTED IN PART and DENIED IN

PART Feldman Gales emergency motion to withdraw is GRANTED

Cosmic is hereby ORDERED to tender to Insituform $44114897 on or

before May 3 2010

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Finally this action is hereby STAYED The following motions to seal

are hereby GRANTED motion for leave to file under seal Plaintiffs motion

to disqualify Richard D Beck as Defendants Expert and Preclude Access to

Confidential Information [535] motion to file under seal Plaintiffs

response to motion for in camera review and inspection of allegedly

privileged document [540] motion to file under seal reply brief re motion

to disqualify Richard D Beck [564] motion to file under seal motion for

leave to amend complaint [571] and motion to file under seal Plaintiffs

reply brief re cross-motion to show cause [575] The deadlines established

by the Courts other March 29 2010 Order regarding Feldman Gales

emergency motion to shorten time and for direction from the Court [622]

and Bryan Cave Powell Goldsteins motion to withdraw [623] are

unaffected by the stay of this action All other pending motions are

DENIED WITH LEAVE TO REFILE [426 427 428 439 532 536 541

572] The Clerk is DIRECTED to ADMINISTRATIVELY CLOSEl this case

pending notification from the parties that the reexamination proceedings

for the 114 and 832 patents have been completed

1 Administratively closing a case is a docket control device used by the Court for statistical purposes Parties need only file a motion to reopen the case

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IT IS SO ORDERED this 29th day of March 2010

Z~~IIl~Ti~Y C Batten Sr United States District Judge

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and Feldman Gale PAs emergency motion to withdraw as counsel for

Cosmic Sondermaschinenbau GmbH and Cosmic TopHat LLC [606]

I Insituforms Motion for Reconsideration

A Background

On March 3 2010 Insituform filed its motion for reconsideration

modification and or clarification [587] In its motion Insituform raises

three issues regarding the February 19 2010 order

First Insituform requests clarification regarding the Courts order

that [a]ll costs associated with the re-inspection [of Cosmics Austrian

facility] shall be borne by Cosmic Insituform asserts that it believes the

Court intended for Cosmic to pay for all of Insituforms fees and expenses

related to the re-inspection but requests clarification on this issue

Second Insituform requests reconsideration of the Courts ruling

regarding Insituforms disclosure of information about Richard Beck In

the February 19 2010 order the Court found that Insituform failed to

adequately disclose information about Beck that was responsive to Cosmics

discovery requests and sanctioned Insituform $7500 for its failure to fully

respond and supplement its responses to the discovery requests

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his testimony















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B Discussion

1 Legal Standard


















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2 Analysis








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v Conclusion





before May 3 2010

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his testimony















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B Discussion

1 Legal Standard


















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2 Analysis








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requested








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v Conclusion





before May 3 2010

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his testimony















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B Discussion

1 Legal Standard


















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2 Analysis








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requested








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v Conclusion





before May 3 2010

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his testimony















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B Discussion

1 Legal Standard


















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2 Analysis








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requested








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v Conclusion





before May 3 2010

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B Discussion

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2 Analysis








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requested








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v Conclusion





before May 3 2010

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2 Analysis








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v Conclusion





before May 3 2010

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requested








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v Conclusion





before May 3 2010

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requested








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v Conclusion





before May 3 2010

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requested








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v Conclusion





before May 3 2010

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v Conclusion





before May 3 2010

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before May 3 2010

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before May 3 2010

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before May 3 2010

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before May 3 2010

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before May 3 2010

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before May 3 2010

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before May 3 2010

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v Conclusion





before May 3 2010

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4-6 Sanctions Order

Documents

Transcript of 4-6 Sanctions Order