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IBM Reply in Support of Motion to Compel Plaintiff's Responses to Defendants Discovery Requests

IBM Reply in Support of Motion to Compel Plaintiff's Responses to Defendants Discovery Requests

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Published by: jaxxstraw on Mar 13, 2012
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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA
QSGI, INC.,
Plaintiff 
,v.IBM GLOBAL FINANCING andINTERNATIONAL BUSINESSMACHINES CORPORATION,
 Defendants
.§§§§§§§§§Case No. 9:11-cv-80880-KLR
REDACTED
1
REPLYIN SUPPORT OFMOTION TO COMPELPLAINTIFF’SRESPONSES TO DEFENDANTS’DISCOVERYREQUESTS
1
Defendants file this redacted Reply because the Reply quotes from the March 12, 2012 rough transcript of the deposition of Plaintiff’s corporate representative, Marc Sherman. Defendants intend to file promptlytheir motion for leave to file under seal this Reply and the Sherman transcript excerpts.
Case 9:11-cv-80880-KLR Document 44 Entered on FLSD Docket 03/12/2012 Page 1 of 13
 
Pursuant to Rules 33, 34 and 37 of the Federal Rules of Civil Procedure and LocalRule 26.1(h), International Business Machines Corporation (“IBM”) and IBM GlobalFinancing (collectively, “Defendants” or “IBM”) submit this reply memorandum insupport of their motion to compel QSGI, Inc. (“QSGI” or “Plaintiff”) to respond toDefendants’ First Request for Production of Documents and Defendants’ First Set of Interrogatories to Plaintiff (collectively, “Discovery Requests”).
Background
IBM’s motion addresses QSGI’s admitted failure to provide responses to IBM’sdocument requests and interrogatories (the “Discovery Requests”), which were servedmonths ago. Rather than addressing that issue, QSGI offers empty assurances thatsomeday it will actually produce some of its documents—the same sorts of assurancesthat IBM has been hearing for months now. QSGI offers no excuse for its failure toprovide the discovery responses required by Rules 33 and 34 and no guidance to theCourt or IBM as to when, if ever, it intends to respond.QSGI brought this suit, and it must meet its discovery obligations, includingresponding to IBM’s Discovery Requests and producing relevant documents. Given theupcoming close of fact and expert discovery (July 29, 2012), IBM respectfully requeststhat this Court compel QSGI to respond immediately.
Case 9:11-cv-80880-KLR Document 44 Entered on FLSD Docket 03/12/2012 Page 2 of 13
 
2
Relevant Chronology
IBM sets forth for the Court’s reference a chronology of certain relevant factsrelating to the discovery that IBM has sought:
 
Date EventNov. 2007
QSGI publicly described purportedly “actionable” anticompetitivebusiness practice by an OEM, IBM, in a securities filing.
2
Dec. 18, 2009
The Securities and Exchange Commission served Marc Sherman, QSGI’sCEO, with a subpoena (“Subpoena”) seeking,
inter alia
, documentscentral to this present suit and indispensable to IBM’s defense, including“[a]ll documents concerning the purported anti-competitive practices by aleading OEM [IBM] . . . ”.
3
Aug. 4, 2011
QSGI brought this action against IBM.
Oct. 21, 2011
QSGI’s counsel represented to IBM that QSGI has very few documentsand that many of QSGI’s documents no longer exist.
4
Nov. 4, 2011
The parties agreed to make a good faith effort to begin producingdocuments no later than January 1, 2012.
5
Nov. 10, 2011
This Court issued its Scheduling Order,
6
which the parties agreedincorporated their agreement to begin fact depositions on March 15,2012, and to exchange opening and rebuttal expert reports on June 12,and July 12, 2012, respectively.
7
Nov. 11, 2011
IBM served QSGI with Document Requests, seeking, among otherdocuments, categories of documents previously requested by the SEC inits Subpoena.
82
QSGI, Inc., Current Report (Form 8-K) (Nov. 14, 2007), Ex. 99.1, Mar. 12, 2012 Besvinick Decl. (“Mar.Besvinick Decl.”) Ex. A.
3
 In re QSGI, Inc.
, SEC Subpoena Served on QSGI, Inc., Bankr. Pet. No. 09-23658, Doc. 211-1(“Subpoena”), Mar. Besvinick Decl. Ex. B;
id.
¶ L.
4
Mar. Besvinick Decl. ¶ 6.
5
Jt. Sched. Rpt.¶ L(vi), Nov. 4, 2011, ECF No. 27.
6
Scheduling Order, Nov. 10, 2011, ECF No. 29.
7
Mar. Besvinick Decl. ¶ 7.
8
Feb. 15, 2012 Besvinick Decl. (“Feb. Besvinick Decl.”), Ex. A. The Subpoena overlaps in substantialpart with IBM’s Document Requests. For example, both request documents concerning: IBM’s allegedanticompetitive practices and the financial impact of these practices on QSGI (
compare
Subpoena ¶¶ L-M
with
Doc. Reqs. ¶¶ 13-15, 18); QSGI’s customers and sales to customers (
compare
Subpoena ¶ Q
with
Doc.Reqs. ¶¶ 6-7); QSGI’s inventory, including any change in its value (
compare
Subpoena ¶¶ J, K, R
with
Case 9:11-cv-80880-KLR Document 44 Entered on FLSD Docket 03/12/2012 Page 3 of 13

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