Case 9:11-cv-80880-KLR Document 101 Entered on FLSD Docket 07/02/2012 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA QSGI, INC., Plaintiff, v. IBM GLOBAL FINANCING and INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendants.

Case No. 9:11-cv-80880-KLR

IBMS MOTION FOR A CONTINGENT STAY OF THE DEADLINE FOR FILING EXPERT DISCLOSURES AND REBUTTAL REPORTS Defendants International Business Machines Corporation and IBM Global Financing (collectively, Defendants or IBM), pursuant to Rule 16(b)(4) of the Federal Rules of Civil Procedure, hereby move this Court for a contingent stay of the July 12, 2012 deadline for IBM to serve its rebuttal expert reports and associated disclosures. IBM seeks this stay because Plaintiff QSGI, Inc. (QSGI) has not served its principal expert reports and associated disclosures, which were due on June 12, 2012. QSGI moved the Court for an extension of this June 12 deadline (as well as, effectively, the entire schedule) (Extension Motion). IBM opposed this motion on the ground that QSGIs sole basis for seeking an extension is its failure to prosecute its case, which is not good cause. (See Defendants Opposition to Plaintiffs Motion for an Extension of Time to File Expert Witness Disclosures (June 20, 2012, ECF No. 98).) QSGIs Extension Motion is currently pending before the Court. IBM has diligently prepared its defense and is prepared to serve its expert reports on July 12, consistent with the extant schedule. If, however, the Court has not decided QSGIs Extension Motion by July 12, IBM could be required to serve rebuttal

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reports prior to receiving QSGIs principal reports. That would be illogical and inconsistent with the schedules sequencing of rebuttal reports to follow principal reports. It would also cause wasted effort, as well as prejudice to IBMs and its experts preparation in this case. Accordingly, IBM asks the Court to stay the July 12 deadline for IBMs rebuttal expert reports and associated disclosures, as follows: Should the Court grant an extension of QSGIs time to serve its principal expert reports, IBM requests a stay of its July 12 deadline until 30 days after the deadline set by the Court for QSGI to serve its principal expert reports and disclosures.1 Should the Court deny QSGIs request for an extension, IBM seeks a stay of its July 12 deadline until 10 days after the date of that denial.2 IBM has good cause to request this relief, which is necessary to preserve the logical sequencing of expert reports and to provide for orderly expert discovery. Fed. R. Civ. P. 16(b)(4) (A schedule may be modified only for good cause and with the judges consent.) CONCLUSION For the foregoing reasons, IBM respectfully requests that the Court grant IBMs motion for a contingent stay of the July 12, 2012 deadline.

Staying the deadline for rebuttal reports until 30 days after the deadline for principal reports is consistent with the current schedule, which presently provides for rebuttal reports on July 12 (i.e., 30 days after the June 12 deadline for principal reports). If the Court grants QSGI an extension of time to serve its expert reports and disclosures, IBM also requests that extensions be granted for the succeeding dates in the schedule, including allowing sufficient time following the deadline for rebuttal reports for expert depositions and dispositive motions. IBM attempted to confer with QSGI before filing this motion. IBM called and corresponded with QSGI in an effort to reach agreement on this straightforward scheduling matter, but QSGI did not respond, prompting this motion. July 2, 2012 Declaration of Benjamin H. Diessel 2-4.
2

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Pursuant to Local Rule 7.1(a)(3)(A), I hereby certify that counsel for the movant has sought to confer with all parties or nonparties who may be affected by the relief sought in this motion in a good-faith effort to resolve the issues but has been unable to resolve the issues. Dated: July 2, 2012 Respectfully submitted, /s/ Laura Besvinick Laura Besvinick Florida Bar No. 391158 HOGAN LOVELLS US LLP 200 South Biscayne Blvd. Suite 400 Miami, FL 33131 Telephone: 305-459-6500 Facsimile: 305-459-6550 laura.besvinick@HoganLovells.com Evan R. Chesler* Richard J. Stark* Teena-Ann V. Sankoorikal* CRAVATH, SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 Telephone: 212-474-1000 Facsimile: 212-474-3700 echesler@cravath.com rstark@cravath.com tsankoorikal@cravath.com Ty Cobb* Eric J. Stock* HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Telephone: 202-637-5600 Facsimile: 202-637-5910 Ty.Cobb@HoganLovells.com Eric.Stock@HoganLovells.com *Admitted Pro Hac Vice Counsel for Defendants IBM Global Financing and International Business Machines Corporation 3

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this 2nd day of July 2012, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.

/s/ Laura Besvinick

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QSGI, INC. SERVICE LIST Juan Pablo Bauta, II Ferraro Law Firm 4000 Ponce de Leon Blvd Suite 700 Miami, FL 33146 Phone: 305-375-0111 Fax: 305-379-6222 Melissa Damian Visconti Ferraro Law Firm 4000 Ponce de Leon Blvd Suite 700 Miami, FL 33146 305-375-0111 Fax: 305-379-6222 Email: mdv@ferrarolaw.com

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EXHIBIT 1

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Re: QSGI v. IBM - Follow Up re Discovery and Scheduling Issues

Benjamin Diessel to: jpb, aak, mdv, ncb
07/02/2012 11:10 AM Richard Stark, Teena-Ann Sankoorikal, ty.cobb, laura.besvinick, Cc: eric.stock Bcc: IBM562

Juan and Amanda: I just called concerning the below and left messages for each of you. We would appreciate a response today on the below items. I am available in the office today to discuss. Benjamin Diessel Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1177 (direct) (212) 474-3700 (fax) Benjamin Diessel
From: To: Cc: Date: Subject:

Juan: I called earlier today to discuss scheduling...

06/29/2012 01:53:25 PM

Benjamin Diessel/NYC/Cravath jpb@ferrarolaw.com, aak@ferrarolaw.com, mdv@ferrarolaw.com, ncb@ferrarolaw.com Richard Stark/NYC/Cravath@Cravath, Teena-Ann Sankoorikal/NYC/Cravath@Cravath, ty.cobb@hoganlovells.com, laura.besvinick@hoganlovells.com, eric.stock@hoganlovells.com 06/29/2012 01:53 PM QSGI v. IBM - Follow Up re Discovery and Scheduling Issues

Juan: I called earlier today to discuss scheduling and discovery issues. I could not get through to either you or Amanda, so I left you a voicemail. Please give me a call back when you have a chance or respond to this email. First, as requested in my voicemail, please advise whether QSGI intends to proceed with Dan Ransdell's deposition on July 12. QSGI has yet to respond to our June 21 or June 26 emails on this subject. If we do not hear from QSGI concerning this deposition by Tuesday, July 3, we will release this date. As I stated in my June 21 email, presently, this date is Mr. Ransdell's only availability for deposition in July (but we will let you know if this changes). Second, as I stated in my message, IBM still has not received QSGI's witness disclosures, which were due a week ago. When will QSGI be providing its witness disclosures? Third, as you know, QSGI's deadline to provide its expert reports and associated disclosures was June 12. On June 12, QSGI moved for a 30-day extension of this deadline, which IBM opposed. That motion is currently pending before the Court. IBM is prepared to provide its expert reports on July 12, consistent with the extant schedule. If, however, the Court has not decided QSGI's extension motion by July 12, provision by IBM of its reports on that date could result in IBM providing rebuttal reports to QSGI prior to IBM receiving principal reports from QSGI (assuming that the Court thereafter grants QSGI's extension motion). This is inconsistent with the schedule's sequencing of rebuttal reports to follow principal reports. Accordingly, IBM would like to stay the July 12 deadline for its expert reports until 30 days after the date for QSGI's provision of expert reports, or 10 days after the Court's denial of the extension motion, as the case may be. Please let us know if QSGI will agree. If we do not hear from you by Monday at 4:00 PM, IBM will file a motion seeking such relief.

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Finally, please advise whether QSGI intends to proceed with the depositions of Joel and Jamie Owens on the noticed date of July 11, 2012. Benjamin Diessel Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1177 (direct) (212) 474-3700 (fax)