UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

No.09:1l-cv-80880-KLR
QSGI, Inc., a Delaware Corporation,
Plaintiff,
v.
IBM GLOBAL FINANCING, a Division of
International Business Machines Corp., and
INTERNATIONAL BUSINESS MACHINES
CORP., Parent to and/or d/b/a IBM GLOBAL
FINANCING,
Defendants.
/
PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SANCTIONS FOR
FAILURE TO ATTEND A RULE 30(b)(6) DEPOSITION AND INDIVIDUAL
DEPOSITION
l. INTRODUCTION
Plaintiff, by and through the undersigned counsel, hereby files its Response to IBM's
Motion for Sanctions for Failure to Attend a Rule 30(b)(6) Deposition and Individual Deposition
[D.E. #81]. No grounds for sanctions exist because Defendant failed to give reasonable notice of
the deposition in accordance with the Local Rules of Civill'rocedure. Moreover, Plaintiff should
not be responsible for incurring the costs of Defendant's multiple lawyers traveling to Miami for
depositions allegedly scheduled to proceed on consecutive dates. Finally, the deposition at issue,
that of Marc Sherman, now has been delayed until July 10, 2012, at Defendant's request, to
allow review of documents prior to the deposition. Had Mr. Sherman's deposition proceeded on
Defendant's proposed date of May 8, 2012, Defendant now would be filing a motion seeking to
Case 9:11-cv-80880-KLR Document 87 Entered on FLSD Docket 05/29/2012 Page 1 of 4
depose Mr. Sherman yet agam. Accordingly, Defendan1's motion for sanctions should be
denied.
II. LAW AND ARGUMENT
Local Rule 26.1 (i) sets forth the notice requirement; for taking depositions. The Rule
states in pertinent parts as follows:
Unless otherwise stipulated by all interested parties, pursuant to Federal Rule of Civil
Procedure 29 ... a party desiring to take the deposition within this State of any person upon
oral examination shall give at least seven (7) days' notice in writing to every other party to
the action ....
L.R. 26.1(i). Moreover, the rule provides that "[f]ailure by:he party taking the oral deposition to
comply with this rule obviates the need for protective order." Id.
On April 28, 2012, counsel for Plaintiff notified counsel for Defendant that Mr. Marc
Sherman was available for deposition during the week (If May 7, 2012. See Dec!. of Ben
Diessel, D.E. #81-2, and Exh. 13 attached thereto. On ..... pril 29, 2012, Defendant's counsel
responded with a lengthy letter that made no mention of \11'. Sherman's deposition. See D.E.
#81-2, and Exh. 14 attached thereto. Instead, Defendant's counsel chose to wait to issue formal
notice of the deposition, including the date, time, and location of the deposition, until 10:13 PM
on May 1,2012. See D.E. #81-2, and Exhs. 17-20 attached thereto.
As stated above, the Rule requires at least seven dhYs' written notice of a parties' intent
to take a deposition. Serving a notice at 10: 13 PM exac:ly seven days before a deposition is
scheduled to go forward, caunot be said to comply with th( spirit of the Local Rules, which urge
attorneys to practice discovery "with a spirit of cooperation and civility," a concept foreign to the
multitude of out-of-state attorneys Defendant requires :0 represent it in this action. See
Discovery Practices Handbook, Appx. A, Sec. 1(1). While the Rule does not specifically impose
a 5:00 PM deadline, common courtesy, as well as notions I)f reasonableness and fairness, dictate
2
Case 9:11-cv-80880-KLR Document 87 Entered on FLSD Docket 05/29/2012 Page 2 of 4
that the close of business would be an appropriate deadl ne for serving a party notice of a
deposition, especially when notice is being sent at the latest possible date under the Rules. As
the Local Rule indicates, Defendant's untimely notice of tne deposition obviated the need for
Plaintiff to seek a protective order. Accordingly, sanctions a re not appropriate in this case.
Moreover, sanctions in this case are not warranted because Plaintiff should not be forced
to incur the costs associated with Defendants' lawyers traveling to Miami for the deposition of
Mr. Sherman. On May 7, 2012, Defendant took the depodtion of Plaintiffs Vice President of
Information Technology, David Harris. This deposition took place in the offices of its local
counsel, Hogan Lovells US LLP, located in Miami, Fioriia. Despite the fact that Defendant
already had at least one out-of-state lawyer, if not more, in town for the deposition of Mr. Harris
in this case, not to mention its local counsel at Hogan Love lls in Miami, Defendant still had two
additional attorneys fly from New York to Miami to appear for the deposition of Mr. Sherman,
which according to Defendant, was set for the very next day. See Dec!. of Richard Stark, D.E.
381-3, at ~ ~ 2-3 (noting that both Mr. Stark and his assol'iate, Pawan Nelson, flew from New
York to Miami on May 7, 2012). Plaintiff should not be penalized because Defendant required
separate counsel to travel from New York to Miami to conduct depositions that allegedly were
scheduled on consecutive dates.
Finally, the deposition of Mr. Sherman, both individually and as the 30(b)(6)
representative on several issues initially was rescheduled to May 21, 2012. See Bauta Dec., at ~
2. On May 16,2012, counsel for Defendant notified counsel for Plaintiff that he wished to "put
off' Mr. Sherman's deposition while Defendant reviewed certain documents Plaintiff had
produced on May 14, 2012. See id., at ~ 3. These docJments were documents produced to
Plaintiffs counsel by Third Party McDonald Hopkins. Counsel for Plaintiff notified counsel for
3
Case 9:11-cv-80880-KLR Document 87 Entered on FLSD Docket 05/29/2012 Page 3 of 4
Defendant that Mr. Sherman was prepared to appear at his deposition on May 21,2012. Id., at'1l
4. Yet, Plaintiffs counsel still chose to postpone Mr. Slerman's deposition, which now is
scheduled for July 10, 2012. See id. at'1l 5. Assuming the May 8, 2012 deposition of Mr.
Sherman had gone forward, Defendant now would be back before this Court seeking to depose
Mr. Sherman for a third time.
III. CONCLUSION
WHEREFORE, for the reasons set forth herein, Plaintiff respectfully requests that this
Court enter an Order denying Defendant's Motion for Sanctions for Failure to Attend a Rule
30(b)(6) Deposition and Individual Deposition [D.E. #81].
By:
Respec1fully submitted,
THE FERRARO LAW FIRM, P.A.
Attorneys for the Plaintiff
4000 Ponce de Leon Blvd.
Suite 7()0
Miami, FL 33146
Telephone (305 375-011
Facsim;le

IU1"V' P. BAUTA, II, ESQ.
Bar No. 894060
MELISSA DAMIAN VISCONTI, ESQ.
Florida Bar No. 0068063
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the j
all counsel of record this 29th day of May 2012.
JUAN P. BAUTA, II, ESQ.
Florida Bar No. 894060
4
Case 9:11-cv-80880-KLR Document 87 Entered on FLSD Docket 05/29/2012 Page 4 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT O'F FLORIDA
No.09:11-cv-80880-KLR
QSGI, Inc., a Delaware Corporation,
Plaintiff,
v.
IBM GLOBAL FINANCING, a Division of
International Business Machines Corp., and
INTERNATIONAL BUSINESS MACHINES
CORP., Parent to and/or d/b/a IBM GLOBAL
FINANCING,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - ~ /
DECLARATION OF JUAN P. E:AUTA, II, ESO.
Juan P. Bauta, II declares as follows:
l. I am a member of The Ferraro Law Firm and counsel to Plaintiff, QSGI, Inc., Plaintiff
in the above-captioned matter. I submit this declaration in support of QSGI' s Response
to Defendant's Motion for Sanctions for Failure tJ Attend a Rule 30(b )(6) Deposition
and Individual Deposition [D.E. #81].
2. The deposition ofMr. Sherman, both individually and as the 30(b)(6) representative on
several issues, initially was rescheduled to May 21, 2012.
3. On May 16, 2012, counsel for Defendant notified (Ounsel for Plaintiff that he wished to
"put off' Mr. Sherman's deposition while Defendant reviewed certain documents
Plaintiff had produced on May 14, 2012. A true and correct copy of the Email chain
between R. Stark and J. Bauta is attached hereto as Exh. A.
Case 9:11-cv-80880-KLR Document 87-1 Entered on FLSD Docket 05/29/2012 Page 1 of 2
4. Counsel for Plaintiff notified counsel for D e f e n d ~ n t that Mr. Sherman was prepared to
appear at his deposition on May 21, 2012. See EX1. A attached hereto.
5. Yet, Defendant's counsel still chose to postpone Mr. Sherman's depos' 'on, whic
is scheduled for July 10,2012. See Exh. A attacht,d hereto.
Case 9:11-cv-80880-KLR Document 87-1 Entered on FLSD Docket 05/29/2012 Page 2 of 2
EXHIBIT A
Case 9:11-cv-80880-KLR Document 87-2 Entered on FLSD Docket 05/29/2012 Page 1 of 5
Juan P. Bauta
From:
Sent:
To:
Cc:
Subject:
Attachments:
Juan,
Benjamin Diessel [BDiessel@cravath.com]
Friday, May 18, 2012 7:16 PM
Juan P. Bauta; Case X. Dam; Nari C. Bauta
Richard Stark; Teena-Ann Sankoorikal; ty.cobb@hoganlovells.com;
laura.besvinick@hoganlovells.com; eric.stock@!hoganlovells.com
Re: Sherman dep
Notice of Continued Deposition_Sherman_7.1 0 .12.pdf; Exhibit A to Sherman 30_b_6_
deposition notice. pdf; Notice of Individual Depo;ition_Sherman_7.10.12.pdf
Attached please find amended notices of the combined continued 30(b)(6) deposition and individual deposition of Marc
Sherman. By prior agreement of the parties, this deposition has been rescheduled for July 10. Today, Case asked if we
would agree to proceed with this deposition in West Palm Beach. We agre1ld and we are in the process of securing a
suitable location further to Case's request. Once we have finalized a d e p o ~ ition location, we will provide notice of the
address.
(I have resent this email adding Juan as a recipient. I inadvertently omitted him on the email that I sent to the group at
7:12 pm.)
Benjamin Diessel
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, NY 10019
(212) 474-1177 (direct)
(212) 474-3700 (fax)
Fran," Richard StarkfNYC/Cravath
To: "Juan P. Bauta" <jpb@ferrarolaw.com>
Cc: Benjamin Diessel/NYC/Cravath@Cravath, "Case X. Dam" <cxd@ferrarolaw.com>, "Mr. Eric J. Stock" <eric.stock@hoganlovells.com>, "Laura Besvinick"
<Iaura.besvinick@hoganlovells.com>, "Nari C. Bauta" <ncb@ferrarolaw.com>, Teena-Ann Sankoori<al/NYC/Cravath@Cravath, "Ty Cobb"
<ty.cobb@hoganlovells.com>
Date" 05/18/201205:26 PM
Subject" Re: Sherman dep
I told you yesterday we're rescheduling it for July 10. Ben will send you a new forr ,al notice.
Richard J. Stark
Cravath, Swaine & Moore LLP
825 8th Ave.
New York, NY 10019
Office: 212-474-1564
Cell: 917-520-8040
From: "Juan P. Bauta" IJpb@ferrarolaw.com]
Sent: 05/181201205:15 PM AST
To: Richard Stark
Cc: Benjamin Diessel; "Case X. Dam" <cxd@ferrarolaw.com>; "Mr. Eric J. Stoct" <eric.stock@hoganlovells.com>; "Laura
1
Case 9:11-cv-80880-KLR Document 87-2 Entered on FLSD Docket 05/29/2012 Page 2 of 5

Besvinick" <laura.besvinick@hoganlovells.com>; "Nari C. Bauta" <ncb@ferrarola'.v.com>; Teena-Ann Sankoorikal; "Ty Cobb"
<ty.cobb@hoganlovells.com>
Subject: RE: Shennan dep
Please advise when I can expect a notice of cancellation of Marc Sherman's deposi:ion.
Juan P. Bauta, II Esq.
THE FERRARO LAW FIRM, P.A.
4000 Ponce de Leon Blvd.
Suite 700
:Vliam!. FL 33146
Phone: (305) 3T50l1i
Facsimile: (305) 3796222
Confidentiality Notice: The information contained in this transmittal, includirlg any attachment, is privileged and
confidential and is intended only for the person or entity to whom it is If you are neither the intended
recipient nor the employee or agent responsible for delivering this message to the intended recipient, you are hereby
notified that any disclosure, copying or distribution or the taking of any acUm in reliance on the contents of this
transmittal is strictly prohibited. If you have received this transmittal in error, please contact the sender immediately and
delete this transmittal from any computer or other data bank.
From: Richard Stark [mailto:RStark@cravath.com]
Sent: Thursday, May 17, 2012 5:51 PM
To: Juan P. Bauta
Cc: Benjamin Diessel; Case X. Dam; Mr. Eric J. Stock; Laura Besvinick; Nari C. Bauta; TSankoorikal@cravath.com; Ty
Cobb
Subject: RE: Sherman dep
Juan,
Thanks for the clarification. Let's reschedule the deposition for July 10. That will be most efficient for all concerned, given
the state of QSGI's document production. We will re-notice the deposition. I understand about your trial issue. If you are
unable to appear on July 10 due to your trial, please let us know that as soc n as you can and in any event prior to July 6,
and we will work with you to reschedule. Otherwise, we will assume that M. Sherman's deposition will proceed on July
10.
-Rick
Richard J. Stark
Cravath, Swaine & Moore LLP
(212) 474-1564 (office)
(917) 520-8040 (cell)
From
"Case X. Dam" <cxd@ferrarolaw.com>,"Mr.EricJ. Stock" <eric.stock@hoganloveUs.com>,"Laura
j C. Bauta" <ncb@ferrarolaw.com>, <TSankm rjkal@cravath.com>, "Ty Cobb" <ty.cobb@hoqanlovells.com>
Date:
Subject RE: Sherman dep
2
Case 9:11-cv-80880-KLR Document 87-2 Entered on FLSD Docket 05/29/2012 Page 3 of 5
Rick,
Perhaps I was undear. I will need to attend Mr. Sherman's deposition. Mr. Sherma] is available on either July 9 or 10 with the
following caveat. As you know, trial is a fluid undertaking and while I expect to be done by the end of June, there are no guarantees.
Once again, Mr. Sherman is ready to proceed this coming Monday. Please advise I;/hether you are in fact going to rescheduling his
deposition?
Juan P. Bauta, II Esq.
THE FERRARO LAW FIRM, PA
4000 Ponce de Leon Blvel.
Suite 7nO
,\-liami, FL .1ll46
Phone: (305) 37Hllll
Facsimile: (30') 3796222
Confidentiality Notice: The information contained in this transmittal, includin 1 any attachment, is privileged and
confidential and is intended only for the person or entity to whom it is addrEssed. If you are neither the intended
recipient nor the employee or agent responsible for delivering this message :0 the intended recipient, you are hereby
notified that any disclosure, copying or distribution or the taking of any actic n in reliance on the contents of this
transmittal is strictly prohibited. If you have received this transmittal in errol, please contact the sender immediately and
delete this transmittal from any computer or other data bank.
From: Richard Stark [mailto:RStark@cravath.com]
Sent: Thursday, May 17, 2012 12:10 PM
To: Juan P. Bauta
Cc: Benjamin Diessel; Case X. Dam; Mr. Eric J. Stock; Laura Besvinick; Nari C. Bauta; TSankoorikal@cravath.com; Ty
Cobb
Subject: Re: Sherman dep
Juan:
Thanks for your response. Two questions: (1) can Case or someone else f'om your firm present Mr. Sherman for
deposition in June? And, if not, (2) can you present him on July 9 or10?
-Rick
Richard J. Stark
Cravath, Swaine & Moore LLP
(212) 474-1564 (office)
(917) 520-8040 (cell)
"Juan P. Bauta" <jpb@ferrarolaw.com>
"ncb" <ncb@ferrarolaw.com>, <TSankoorikal@cravath.com>, ''Ty Cobb" <ty.cobb@hoganlovells.com> "Laura Besvinick"
"Mr. Eric J. Stock" <eric.stock@hoganlovells.com>, <BDiesse @cravath.com> '
Subject Re: Sherman dep
3
Case 9:11-cv-80880-KLR Document 87-2 Entered on FLSD Docket 05/29/2012 Page 4 of 5
-----------
Rick:
Mr. Sherman is prepared to appear on Monday. If you chooee to reschedule his deposition
because of MHls production of their SEC documents that your decision. In keeping with
Mr. Diessel's policy regarding your witnesses, I will not agree to continue the
deposition. This seems especially appropriate given your motion for sanctions. As you
know I am in trial in June and therefore I will not be ayailable. As Mr. Diessel is
aware I will need to be present during Mr. Sherman's deposition. Please advise of your
decision as soon as possible.
Juan P Bauta II
This email is protected by federal and state law. If you have received this email in
error please delete it and contact the sender immediately.
On May 16, 2012, at 9:57 PM, llRStark@cravath.com
ll
<RStar:k@cravath.coffi> wrote:
>
> Juan,
>
> In view of the hard drive document production receiveci from QSGI at our
> office on Monday, which we have not yet been able to :.oad or review, it
> seems to me that we should put off Mr. Sherman's depo:;ition for a bit. It
> will be more efficient to proceed with this depositio:l after we have had a
> chance to assess your client's latest, apparently sub;tantial, production.
> Please let me know if Mr. Sherman can be made available in June.
> Alternatively, we can proceed on Monday, if we have YJur agreement to
> continue the deposition after we have reviewed this production.
> Please let me know asap how you prefer to proceed so that we can make
> appropriate arrangements.
>
> -Rick
>
> Richard J. Stark
> Cravath, Swaine & Moore LLP
> 825 8th Ave.
> New York, NY 10019
> Office: 212-474-1564
> Cell: 917-520-8040
>
>
> This e-mail is confidential and may be privileged. U3e or disclosure of it by anyone
other than a designated addressee is unauthorized. If yOU are not an intended recipient,
please delete this e-mail from the computer on which received it.
>
This e-mail is confidential and may be privileged. USE or disclosure of it by anyone
other than a designated addressee is unauthorized. If you are not an intended recipient,
please delete this e-mail from the computer on which you received it.
This e-mail is confidential and may be privileged. USE! or disclosure of it by anyone
other than a designated addressee is unauthorized. If you are not an intended recipient,
please delete this e-mail from the computer on which :rou received it.
This e-mail or disclosure of it by anyone
other than a designated addressee is unauthorized. If you are not an intended recipient,
please delete this e-mail from the computer on which ?OU received it.
4
Case 9:11-cv-80880-KLR Document 87-2 Entered on FLSD Docket 05/29/2012 Page 5 of 5