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4-6 Sanctions Order

4-6 Sanctions Order

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Published by: Myers, Boebel and MacLeod L.L.P. on Apr 07, 2010
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04/07/2010

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,
4t?<>o
~.
:,'
?O~
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. 1:08-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 Corp.'s C'Insituform") motion for reconsideration,modification,
and/or
clarification
ofthe
Court's February 19, 2010
Order
[587], Insituform's submission
of
attorneys' fees
and
expenses [580],
 
and Feldman Gale, P.A.'s emergency motion to withdraw as counsel for Cosmic Sondermaschinenbau GmbH and Cosmic TopHat
LLC
[606].
I.
Insituform's Motion for Reconsideration
A.
Background
On March 3,
2010,
Insituform filed its motion for reconsideration,modification, and
or
clarification
[587].
In
its motion, Insituform raisesthree issues regarding the February
19,
2010
order.First, Insituform requests clarification regarding the Court's order
that
"[a]ll costs associated with
the
re-inspection [of Cosmic's Austrianfacility] shall be borne by Cosmic." Insituform asserts that it believes theCourt intended for Cosmic to pay for all of Insituform's fees and expensesrelated to
the
re-inspection,
but
requests clarification on this issue.Second, Insituform requests reconsideration of the Court's rulingregarding Insituform's disclosure of information about Richard
Beck.
In
the
February
19,
2010
order,
the
Court found that Insituform failed toadequately disclose information about Beck
that
was responsive to Cosmic'sdiscovery requests and sanctioned Insituform
$7,500
for its failure to fullyrespond and supplement its responses to the discovery requests.
2
 
Insituform asserts
that
the Court's finding constitutes clear error.
It
contends
that
the Order did not provide which discovery request(interrogatory nineteen or twenty-one) gave rise to Insituform's duty todisclose details about Becks' work with Cosmic. Insituform asserts
that
(1)
Beck did
not
participate in Insituform's development of
the
technologyclaimed in
the
patents-in-suit
and
therefore is
not
responsive tointerrogatory twenty-one; and
(2)
Insituform's disclosure of Beck inresponse to interrogatory nineteen is consistent with Beck's declaration,acknowledgement forms, and disqualification briefing stating
that
Beck wasnot employed by Insituform prior to
1998.
Further, Insituform asserts
that
even if
the
Court were to find
that
Insituform failed to provide properdiscovery responses regarding Beck, the Court should
not
sanctionInsitufornl because Cosmic:
(1)
never met
and
conferred with Insituformregarding its responses;
(2)
never moved to compel supplementalresponses;
and
(3) was not prejudiced.Third, Insituform requests
that
the Court modify its order regardingadditional destructive testing of a sample Cosmic Top Hat. In the February
19
order, the Court found
that
Insituform improperly requested Dr. RichardParnas to conduct destructive testing
on the
Top Hat without first seeking
3 

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