UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 09:I1-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 MOTION TO QUASH DEFENDANTS' DUCES TECUM TO
RUBINBROWN LLP
Plaintiff, QSGI, Inc., by and through its undersignd counsel, and pursuant to Federal
Rule of Civil Procedure 45(c), files this Motion to Quash Defendants' Subpoena Duces Tecum
("Subpoena") to RubinBrown LLP, on the grounds that the illfonnation and materials sought are
protected by Florida's accountant-client privilege. 90.5055, Fla. Stat. (2012). In support
thereof, Plaintiff states the following:
Background
1. Defendants served the Subpoena, dated May 2S, 2012, on Rubin Brown LLP
("RubinBrown"), an accounting finn Plaintiff has used for ge 1cral accounting purposes. A copy
of the Subpoena is attached hereto as Exhibit A.
2. RubinBrown is not a party to, and does not represelt a party in connection with, the
above-captioned litigation.
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QSGI has Standing to Object to the Subpoena
3. A party has standing to object to a third-party subpoena duces tecum with respect to
Privilege or similar grounds personal to the party. See Washington v. Thurgood Marshall Acad.,
230 F.R.D. 18,23 (D.C. Cir. 2005); Stevenson v. Stanley 30stitch. Inc .. 201 F.R.D. 551, 555
(N.D. Ga. 2001)C'[!]t appcars to be the general rule of the federal courts that a party has standing
to challenge a subpoena when she alleges a 'personal rig'lt or privilege with respect to the
materials subpoenaed.''')(quoting Brown v. Braddick, 595 F. 2d 961, 967 (5th Cir. 1979)).
4. Because the infonnation and materials requested ill the Subpoena are subject to the
accountant-client privilege, QSGl has standing to object to the production of documents pursuant
to the Subpoena.
Florida's Accountant-Client Privilege Statute Applies to Prevent Disclosure of the
Information Sought in the Subpoena
5. Federal Rule of Evidence 501 provides the following:
[I]n civil actions and proceedings, with respect to an element of a claim or defense as to
which State law supplies the rule of decision, the privilege of a witness, person,
government, State or political subdivisions thereof ;hall be detennined in accordance
with State law.
6. Because this litigation is pending in the United Stales District Court for the Southern
District of Florida on the basis of diversity jurisdiction, this Court must apply Florida's law with
respect to the accountant-client privilege.
7. In Florida, the accountant-client privilege is goverred by statute, which provides, in
pertinent part, as follows: "A communication between an accountant and the accountant's client
is 'confidential' if it is not intended to be disclosed to third persons .... " 90.5055(1)( c), Fla.
Stat.
2
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8. The statute defines "'accountant" as "a certified publi: accountant or a public accountant.
Fla. Stat. 90.5055(1)(a). RubinBrown is a public accounting finn and qualifies as an
accountant under the statute.
9. The statute also defines a "client" as "any person, public officer, corporation ... , who
consults an accountant for the purpose of obtaining accounting services." Fla. Stat.
90.5055(I)(b). QSGI was a client of Rubin Brown's pursuant to the statute.
10. The documents requested in the Subpoena to RubinBrown are subject to the accountant-
client privilege, and, therefore, cannot be produced to Defendants. Plaintiffs communications
with RubinBrown, including documents it provided to RutinBrown, were not intended to be
disclosed to third persons, but rather, were provided to the accounting finn for the purpose of
enabling RubinBrown to render accounting advice to Plaintiff
II. Accordingly, the Subpoena from Defendant to Rubi 1Brown should be quashed on the
basis that the intonnation requested in the Subpoena is subject to Florida's accountant-client
privilege, and thus protected from disclosure.
3
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WHEREFORE, based upon the foregoing, Plaintif:' respectfully moves this Court to
quash the Defendants' Subpoena Duces Tecum to RubinBro", n LLP.
Dated: June 13,2012
By:
Respcctf lily submitted,
THE FEltRARO LAW FIRM, P.A.
Attorney::for the Plaintiff
4000 POlice de Leon Blvd.
Suite 70(1
Miami, F L 33146
Telephor e (305 375-011
Facsimik (3 379-6
: A ~ m
AN P. BAUTA, II, ESQ.
Florida Ear No. 894060
MELlSS'" DAMIAN VISCONTI, ESQ.
Florida Ear No. 0068063
4
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served via CM/ECF on
all counsel of record this 13th day ofJunc 2012.
JUAN P. BAUTA, ESQ.
Florid2 Bar No. 894060
5
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