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  • nycourtwatcher nycourtwatcher Dec 16, 2009 7:23 PM Flag

    Modavox Provides Update Regarding Tacoda Patent Infringement Case

    Dec 16, 2009 (FinancialWire via COMTEX) -- (Comment on this article at

    December 16, 2009 (FinancialWire) -- On Tuesday, December 8, 2009, Modavox, Inc.
    (OTCBB: MDVX) participated in a hearing with Magistrate Judge Gabriel W.
    Gorenstein, of the U.S. District Court of New York (Southern District),
    regarding Modavox's pending Motion for Sanctions for Spoliation of Evidence and
    Evasive Disclosure Practices pertaining to the patent infringement lawsuit filed
    by Modavox against Tacoda on August 9, 2007.

    Modavox's Motion seeks remedial and punitive sanctions related to alleged
    activities and omissions of Tacoda which resulted in the loss or destruction of
    evidence, including alteration of evidence and evasive actions taken by Tacoda
    during discovery. The Motion identifies software Source Code, meta data, and
    other significant materials that Modavox contends were lost, destroyed or
    withheld in violation of applicable Court Orders and legal authorities. The
    Motion further contends that Tacoda had an obligation to preserve this evidence
    regarding its Source Code and that Tacoda should have known that destruction of
    such Source Code would materially limit Modavox's ability to fully and fairly
    prepare its infringement claims for trial.

    During the hearing, the parties discussed with Judge Gorenstein the process for
    addressing the important technical issues raised in Modavox's Motion. Modavox's
    lead counsel, David Shaub of Shaub & Williams, LLP, informed the Court of
    Modavox's desire to assist the Court in its technical analysis so as to permit
    the most expeditious resolution of Modavox's Motion. After a discussion of the
    options for addressing the issues raised in the Motion, the parties agreed to
    conduct a conference involving their respective experts to discuss the technical
    issues forming the basis of Modavox's Motion, after which Modavox could
    supplement its Motion.

    Modavox views this as particularly important because Tacoda, after Modavox's
    Motion was fully briefed but before the hearing on December 8, produced to
    Modavox its complete repository of archived source code, which repository is
    being reviewed by Modavox experts. Modavox intends to illustrate for the Court
    why Tacoda's latest source code production does not obviate the need for the
    relief sought by Modavox stemming from the discovery misconduct described in
    Modavox's Motion.

    During the hearing, Modavox's counsel suggested that Modavox be permitted to
    amplify its explanations of the technical issues and requested sanctions and
    then re-submit the Motion incorporating any issues resolved or clarified during
    the conference with experts. Accordingly, the Court issued an Order, dated
    December 9, 2009, taking the Motion off calendar "without prejudice," permitting
    Modavox to re-file the Motion. Modavox is in the process of arranging the
    conference between the parties' experts and intends to re-file the Motion
    following the holidays. The supplemented Motion will clarify for the Court
    certain technical facts, per the conference with experts, and will show the
    Court why the source code repository produced by Tacoda in response to Modavox's
    Motion does not cure or cleanse Tacoda's loss and/or destruction of relevant
    evidence of infringement, thus further supporting the requested sanctions.

    Modavox, Inc. provides Internet applications and services based upon
    Marketing-driven technology platforms that enhance the delivery of marketing
    communications through intelligent distribution to all Internet-enabled devices.

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