IBM Motion to Compel Affidavit

8/3/2019 IBM Motion to Compel Affidavit

1/31

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

QSGI, INC.,Plaintiff, v.

IBM GLOBAL FINANCING andINTERNATIONAL BUSINESSMACHINES CORPORATION, Case No. 9:11-cv-80880-KLRDefendants. DECLARATION OF LAURA BESVINICKLAURA BESVINICK, declares as follows:

1. I am a mem ber of the law firm of Hogan Lovells US LLP and counsel todefendants IBM Global Financing and International Business Machines Corporation(collectively, "Defendants" or "IBM") in the above-captioned action. I submit thisdeclaration in support of Defendants' Motion to Compel Plaintiff to Provide Responses toDefendants' Discovery Requests.

2. Attached as Exhibit A is a true and correct copy of Defendants' First Requestfor Production of Documents ("Document Requests"), served on Plaintiff on November 11,2011.

3. Attached as Exhibit B is a true and correct copy of Defendants' First Set ofInterrogatories ("Interrogatories"), served on Plaintiff on December 6, 2011.

4. On December 5, 2011, Plaintiff's counsel requested by email a thirty-dayextension to January 11, 2012, to respond to the Document Requests. Defendants agreed tothat request by email on December 7, 2011.

5. On January 5, 2012, I spoke to Plaintiff's counsel. Plaintiff's counselinformed me that QSG I would not be able to m eet the January 5 deadline for responding to

Case 9:11-cv-80880-KLR Document 40-1 Entered on FLSD Docket 02/15/2012 Page 1 of 31


2/31

the Interrogatories or the January 11 deadline for responding to the Document Requests.Defendants agreed to extend the deadline for responses to the Interrogatories and DocumentRequests (collectively, the "Discovery Requests") to January 17, 2012.

6. On January 6, 2012, Plaintiff's counsel confirmed by email that Defendantsagreed to extend the deadline for responding to the Discovery Requests from January 11,2012 until January 17, 2012.

7. On January 17, 2012, Plaintiff's counsel advised me that QSGI would not beable to meet the January 17 deadline as agreed.

8. On January 19, 2012, Defendants sent Plaintiff a letter requesting that Plaintiffrespond to the Discovery Requests by January 24, 2012.

9. QSGI failed to respond by January 24, 2012, as requested by D efendants.10. On January 27, 2012, Plaintiff produced copies of 789 docum ents.11. On January 27, 2012, I again spoke with Plaintiff's counsel regarding

Plaintiff's overdue responses and about QSGI's production of documents. Defendants againagreed to extend the deadline for responses to the Discovery Requests. Plaintiff's counselselected February 3, 2012, as the date by which Q SGI w ould provide its Responses to theDiscovery Requests. Plaintiffs counsel represented that the production of additional

documents would be "rolling" but did not provide a timetable for when such documentswould be produced. Plaintiff also offered to make available for inspection 400 boxes ofdocuments stored in a warehouse in New Jersey.

12. On February 2, 2012, Defendants memorialized in a letter Plaintiff'sagreement to provide responses to the Document Requests by February 3, 2012. In that

letter, Defendants also asked Plaintiff when Plaintiff would produce the additional documents

2



3/31


4/31

18.hereby certify that the above-referenced telephone conferences, emails andletters constitute Defendants' good faith effort to resolve the disputed discovery issueswithout the Court's intervention.

I declare under the pen alty of perjury that the foregoing is true and correct.Executed on February 15, 2012

Laura Besvinick

4



5/31

EXHIBIT A



6/31

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

No. 09:11-cv-80880-RYSKAMP

QSGI, INC., a Delaware Corporation,Plaintiff,v.IBM GLOBAL FINANCING, a Division of International Business MachinesCorporation, INTERNATIONALBUSINESS MACHINESCORPORATION, Parent to and/or d/b/aIBM GLOBAL FINANCING,Defendants. DEFENDANTS IBM AND IBM GLOBAL FINANCING'SREQUEST FOR THE PRODUCTION OF DOCUMENTS

Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure andthe local rules of this Court, defendants International Business Machines Corporation("IBM") and IBM Global Financing ("IGF") hereby request that plaintiff QSGI, Inc.("QSGI") produce for inspection and copying the documents, communications,electronically stored information, and things described below, within thirty (30) daysfrom the date of service, at the law offices of Cravath, Swaine & Moore LLP, 825 EighthAvenue, New York, NY 10019.

DEFINITIONS AND INSTRUCTIONS1.his request incorporates by reference the instructions and rules ofconstruction set forth in Rule 34 of the Federal Rules of Civil Procedure, Local Rule 26.1

and relevant case law.



7/31

2. The term "Amended Complaint" means the complaint as amended andfiled with the Court by QSGI on August 4, 2011.

3. The term "communication" means the disclosure, transmittal, transfer orexchange of information (in the form of facts, ideas, inquiries or otherwise).

4. The term "computer" means servers (including IBM mainframes and non-IBM servers), laptops and personal computers.

5. The term "concerning" means relating to, referring to, describing,evidencing or constituting.

6. The term "document" has the broadest possible construction and includes,but is not limited to, the original and/or any copies of any correspondence, book,pamphlet, periodical, letter, calendar or diary entry, memorandum, message, calendar ordiary, telex, telegram, cable, telecopy, report, record, study, stenographic or handwritten

note, working paper or draft, invoice, voucher, receipt, notice, check, statement, chart,graph, data or other compilation, map, diagram, blueprint, table, index, picture, list,promissory note, card, summary, transcript, confirmation slip, order, manual, photograph,contract, agreement, ledger, log, journal, instrument, accounting, account, corporateminutes, meeting minutes, notebook, notes, schedule, voice recording, tape, microfilm,data sheet, data processing card, disk, computer software data which can be reviewedfrom electronic media including but not limited to emails and metadata, memorandumand/or record of telephone conversations or face-to-face conversations, or any otherwritten, typed, printed, recorded, transcribed, punched, taped, filmed, photographed orgraphic maker, however produced or reproduced, and copies or reproductions of any ofthe above that differ in any respect from the original, such as copies containing marginal,

2



8/31

handwritten or "blind-copy" notes or notations or other variations, drafts or non-identicalcopies. Designated documents are to be taken as including all attachments, exhibits,enclosures, appendices and other documents that relate to or refer to such designateddocuments.

7. The term "IBM" means IBM, including each of its directors, officers,agents, employees, attorneys, representatives, agents, subsidiaries, affiliates and any otherperson who acts, has acted or purported to act or have acted under its control or on itsbehalf.

8. The term "IGF" means IGF, a business unit of IBM, including each of itsagents, employees, attorneys, representatives, agents and any other person who acts, hasacted or purported to act or have acted under its control or on its behalf.

9. The terms "QSGI", "you" and "your" means QSGI, Qualtech InternationalCorp., and Qualtech Services Group, Inc., their predecessors and their respective officers,directors, employees, partners, corporate parents, subsidiaries, affiliates, trustees andbeneficiaries, individually and collectively.

10. The terms "all", "each" and "any" mean all and any.11. The terms "including" and "includes" mean "including" and "includes"

without limitation.12. The terms "and" and "or" shall be construed conjunctively or disjunctively

as necessary to make the request inclusive rather than exclusive.13. The term "IBM mainframe" refers to IBM's System/390 and System z

computer systems.

3



9/31

14. The term "used IBM mainframe" refers to IBM mainframes that werepreviously owned by or leased to a customer.

15. The term "capacity" means the active hardware resources that areavailable to process workloads on an IBM mainframeincluding, e.g., the number ofactive processors (including the capacity level, i.e., full capacity or some fractionalcapacity at which IBM authorizes each active processor to operate) and the amount ofactive memory for which the user has purchased the authorization to access and use.

16. The term "memory" means the RAM memory of a computer system.17. The term "part" means any component of a mainframe computer,

including but not limited to field replaceable units (FRUs), memory cards, Input/Output(I/O) cards, processors, processor book packages, multi-chip modules (MCMs), drawersand Single Chip Modules (SCMs).

18. The terms "upgrade" and "downgrade" mean, respectively, any upward ordownward change to the capacity of an IBM mainframewhether such change involvesa change of parts or a change to data or microcode that relates to the authorized capacityfor that IBM mainframe.

19. The term "configuration change" means any change of parts or to the dataor microcode that specifies the capacity for that IBM mainframe that a customer isauthorized to use.

20. The use of any definition for the purposes of this request shall not bedeemed to constitute an agreement or acknowledgment on the part of IBM or IGF thatsuch definition is accurate, meaningful or appropriate for any other purpose in this action.

4



10/31

21. The use of the singular of any word shall include the plural and vice versa,and the use of a verb in any tense or voice shall be construed as the use of that verb in allother tenses and voices, as necessary to bring within the scope of the discovery request allresponses that might otherwise be construed as outside its scope.

22. This request requires production of all requested documents that are inyour possession, custody or control.

23. Documents shall be produced in the same sequence as they are containedor found in the original file folder. The integrity and internal sequence of the requesteddocuments within each folder shall not be disturbed.

24. No paragraph of these requests shall be construed with reference to anyother paragraph for purposes of limitation.

25. Should a claim be made that any requested document is not subject to

discovery by reason of a privilege or legal protection, provide a privilege log containingthe information required by Fed. R. Civ. P. 26(b)(5) and Local Rule 26.1(g)(3)(C).

26. These requests are continuing in nature and therefore require that QSGI, inaccordance with the duty to supplement and correct under Fed. R. Civ. P. 26(e), promptlyproduce for inspection and copying any documents not previously produced that you mayfrom time to tim e acquire, obtain, locate or identify.

27. IBM reserves the right to propound additional requests.

5


C 9 11 80880 KLR D t 40 1 E t d FLSD D k t 02/15/2012 P 11 f 31


11/31

DOCUMENT REQUESTS1. All documents and communications concerning IBM.2. All documents or communications concerning any IBM policy or practice

relating to parts for IBM mainframes; IBM mainframe microcode; upgrades ordowngrades to IBM mainframes; or the reconfiguration or modification of IBMmainframes, including but not limited to communications with IBM, customers, or anyother person or entity about the six-month rule, as defined in Paragraph 16 of theAmended Complaint.

3. All documents supporting your allegation in Paragraph 14 of the AmendedComplaint that "[p]rior to 2007, IBM freely sold QSGI the parts and micro-codenecessary for QSGI to modify the capacity of the used IBM mainframe computers".

4. All documents supporting your allegation in Paragraph 16 of the Amended

Complaint that "IBM's policy change (hereinafter the 'six-month rule') did not extend toIGF or IGF's customers".

5. All documents and communications concerning each IBM mainframe thatQSGI acquired, including the machine type, model information, serial number andconfiguration of each such IBM mainframe; the entity or source from which QSGIacquired each such mainframe; the price QSGI paid for each such mainframe; anyupgrades, downgrades or configuration changes to such mainframe over time; the meansby which those upgrades, downgrades or configuration changes were accomplished; fromwhom those upgrades, downgrades or configuration changes were requested; by whomthose upgrades, downgrades or configuration changes w ere requested; and the entity thatperformed such upgrades, downgrades or configuration changes.

6


Case 9:11 cv 80880 KLR Document 40 1 Entered on FLSD Docket 02/15/2012 Page 12 of 31


12/31

6. All documents and communications concerning each IBM mainframe thatQSGI sold, leased or otherwise transferred, including but not limited to the machine type,model information, configuration and serial number of each such mainframe; requestsfrom customers for any upgrade, downgrade or configuration change to any such IBMmainframe; the means by which any upgrades, downgrades or configuration changeswere accomplished; the entity that performed such upgrades, downgrades orconfiguration changes to the mainframe; the entity (if any) that purchased, leased orotherwise obtained any such mainframe; the date of such transaction; and any order ortransaction documentation such as purchase supplements, statements of work, invoices,agreements and any amendments or attachments thereto.

7. All documents and communications concerning QSGI's sale of IBMmainframe parts or microcode, including but not limited to the entity (if any) that

purchased or otherwise obtained any such mainframe parts from QSGI or an entity orperson acting on behalf of QSGI; the specific parts or microcode that was sold orotherwise transacted; the date of such transaction; and any order or transactiondocumentation such as purchase supplements, statements of work, invoices, agreementsand any amendments or attachments thereto.

8. All documents concerning any attempts, whether successful orunsuccessful, to acquire used m ainframes from IBM or to sell or otherwise transfer usedmainframes to IBM.

9. All documents and comm unications concerning any requests by QSGI,entities or persons on behalf of QSGI, or any other entity or person for parts, microcode,upgrades or downgrades to used IBM mainframes, including but not limited to requests to

7




13/31

IBM; any requests that IBM allegedly refused; the entity making such request; the date ofsuch request; the serial number of the IBM machine to which such part or microcodewould be added or removed; and the intended, planned or actual use of any such part,microcode, upgrade or downgrade to the used mainframe that was the basis of suchrequest.

10. All documents and communications concerning any purchase by QSGI,entities or persons on behalf of QSGI, or any other entity or person of parts, microcode,upgrades or downgrades to used IBM mainframes, including but not limited to purchasesfrom IBM; the entity making such purchase; the date of such purchase; the serial numberof the IBM machine to which such part or microcode would be added or removed; andthe intended, planned or actual use of any such purchased part, microcode, upgrade ordowngrade to the used mainframe.

11. All documents and communications concerning any unsuccessful attemptsor bids made by QSGI to sell used IBM mainframes to customers.

12. All documents and communications concerning any requests or orders forused IBM mainframes that QSG I was unable to fulfill, including but not limited toQSGI's inability to obtain any parts, microcode or changes to capacity; the efforts thatQSGI undertook to obtain such parts, microcode or changes to capacity; the reason thatQSGI was unable to obtain such parts, microcode or changes to capacity; and thecustomer that requested or placed such order.

13. All documents and communications concerning all sales of used IBMmainframes that QSGI allegedly lost as a result of the six-month rule or IBM's allegedrefusal to provide parts or microcode to upgrade or downgrade such IBM mainframes,

8




14/31

including but not limited to documentation concerning the identities of the customers, thedates of any alleged refusals by IBM, the specific parts and/or microcode that IBMallegedly refused to provide and the entity or person from whom the customer obtained aused mainframe or other non-mainframe server.

14. All documents and communications concerning the income, profit, orrevenue (including but not limited to sales, lost maintenance or service revenue) thatQSGI allegedly lost as a result of the six-month rule or IBM's alleged refusal to provideparts, microcode, upgrades, downgrades or configuration changes for a used IBMmainframe.

15. All documents and communications supporting QSGI's allegations inParagraphs 26 and 31 of the Amended Complaint that QSGI has "lost profits, lostbusiness and been rendered unable to compete in the used IBM mainframe computermarket", that QSGI, "[a]s a direct and proximate result of [IBM's] unfair and deceptivetrade practice QSGI has been damaged", and that IBM "damaged the business of QSGIcausing it to lose profits, lose its ongoing business and to lose the future business it wouldhave otherwise received".

16. All marketing and promotional materials for QSGI's IBM mainframebusiness, including, but not limited to, advertisements, advertising materials, brochures,articles, web pages, wikis, pamphlets, price lists, product specifications, press releasesand catalogs.

17. All documents and communications relating to planning, analyses orstrategy concerning QSGI's used mainframe business, including budgets, sales

9

Case 9:11 cv 80880 KLR Document 40 1 Entered on FLSD Docket 02/15/2012 Page 14 of 31



15/31

projections, sales estimates, sales, business plans, wikis, short- or long-term strategies orobjectives, competitive plans, valuations, forecasts and presentations.

18. All documents concerning QSGI's inventory of used IBM mainframes andparts, including but not limited to short- or long-term strategies or objectives; valuations;forecasts and presentations relating to QSGI's inventory of used IBM mainframes andparts; the contents (machine-type and model information), serial numbers, volume andvalue of such inventory; any attempts to sell or any potential sale of all or part of QSGI'sinventory of used IBM mainframes and parts to any person or entity; the sale of QSGI'sinventory of used IBM mainframes to Top Gun Technology; and QSGI's reduction of itsmainframe inventory, as detailed in QSGI's November 26, 2007 press release titled"QSGI Announces Data Center Hardware Division Restructuring".

19. All documents and communications concerning the finances of QSGI,

including but not limited to earnings call transcripts; QSGI's tax returns; and documentsconcerning revenues, costs, profits, losses, net income, depreciation and the write-downof assets.

20. The tax returns of any QSGI principal, director or officer.21. All documents and communications concerning sources from which used

IBM mainframes or parts, upgrades, downgrades, configuration changes or capacity forIBM mainframes could be purchased or obtained.

22. All documents and communications concerning the sale of used IBMmainframes by any broker, seller or reseller of used IBM mainframes, including but notlimited to Top Gun Technology, Inc., Qualtech International Corp., Qualtech Services

10

g



16/31

Group, Inc., and WindsorTech Inc., and any documents relating to competition withvendors, brokers, sellers and resellers of new and used IBM mainframes.

23. All documents concerning any persons or entities that sell or lease IBMmainframes (whether new or used) or non-IBM servers (whether new or used), includingany documentation, market studies, or strategic plans concerning or describingcompetition between and amongst IBM mainframes (whether new or used) and non-IBMservers (whether new or used).

24. All documents concerning new or used mainframes or non-IBM serversthat potential customers considered, or were offered, as an alternative to any QSGIoffering.

25. All documents concerning any sales or other transactions that QSGI lost toIBM, to non-IBM sellers of IBM mainframes, or to sellers of non-IBM servers, includingany documents concerning the IBM or non-IBM servers that any potential customerchose instead of obtaining a used mainframe from you, and any documents comparingQSGI's offering to used or new servers (including mainframes) sold by IBM or anotherentity.

26. All documents concerning prices when selling or otherwise transacting inused mainframes or parts thereof, including but not limited to any formulas, competitivebenchmarks or comparisons that you use to set such prices.

27. All documents and comm unications concerning the definition of thealleged "used IBM mainframe computer market", including but not limited to documentsthat support QSGI's purported "used IBM mainframe" computer market. (Am. Compl.II 12, 19.)

11



17/31

28. All documents and communications concerning the definition of thealleged geographic market of "the United States of America". (Am. Compl. 19.)

29. All documents and communications concerning QSGI's allegation thatIBM has monopoly power in an alleged market for used IBM mainframes. (Am. Compl.

'1 1111 11, 19, 28.)30. All documents and communications supporting your allegations in

Paragraph 25 of the Amended Complaint that "IBM and IGF use of their monopolypower over the micro-code is an unfair business practice" or that IBM "has engaged in adeceptive and unfair trade practice".

31. All documents and communications concerning QSGI's filings with anygovernmental agency, including but not limited to drafts of such filings.

32. All communications with Top Gun Technology, Jamie Owens or Joel

Owens.33. All documents and communications concerning any actual, proposed,

contemplated or potential business ventures with IBM.34. Directories, organizational charts or other documents sufficient to show

the name, title and reporting relationship of QSGI's employees, officers and directors andthe corporate structure of QSGI, including how QSGI's corporate structure changed as aresult of dissolution, mergers, reverse mergers, acquisitions, asset sales or other corporatetransactions.

35. All documents and communications concerning the reverse mergerbetween QSG I and KruseCom , LLC, including but not limited to documents concerningthe rationale for and analysis of such reverse merger; any preparation for such reverse

1 2



18/31

merger and completion of such reverse merger; and documents relating to the financialinterests of any QSGI principal, director or officer in KruseCom, LLC.

36. All documents and communications concerning QSGI's bankruptcyproceeding, including its decision to file for bankruptcy and its preparation for thebankruptcy proceeding.

37. All documents and communications concerning QSGI's acquisition ofQualtech International Corp. and Qualtech Services Group, Inc., in or around 2004.

38. All documents and communications relating to any fraud, self-dealing, orallegations of fraud or self-dealing, committed by QSGI or its affiliates' principals,investors, employees or fiduciaries, including arising out of QSGI's financingarrangements, its dissolution, any mergers, reverse mergers, acquisitions, asset sales orother corporate transactions.

39. All documents and communications concerning policies or practices fordocument retention and the storage of QSGI's documents, including but not limited tocorrespondence with any vendor or company used by QSGI to store or host documents,payment stubs or receipts and documentation concerning the non-payment of anyamounts owed in connection with storage or hosting of QSGI documents.

40. An inventory of all QSGI documents stored with or hosted by any vendoror storage company and a copy of all such QSGI documents. To the extent suchdocuments no longer exist or have been lost, all documents concerning the circumstancesand facts relating to the destruction or loss of such documents, including but not limitedto the relevant QSGI personnel; any in-house or outside counsel retained by QSGI at thetime; vendor personnel involved; the date(s) and manner of such destruction or loss,

13



19/31

including without limitation the destruction or loss of any backup copies; who at QSGIwas notified of such destruction or loss or that such destruction or loss was imminent; thedate of such notification; approval or assent, if any, by QSGI to any such destruction orloss; steps taken to recover any such documents, e.g., from backups, and the results ofsuch steps; and evidence that no backup copies now exist in any form or place.

41 .ll documents and communications that QSGI identifies in its InitialDisclosures.14



20/31

/

Dated: November 11, 2011Respectfully submitted,

Laura BesvinickFlorida Bar No. 391158HOGAN LOVELLS US LLP1111 Brickell AvenueSuite 1900Miami, FL 33131Telephone: 305-459-6500Facsimile: [email protected] R. Chesler*Richard 3. Stark*Teena-Ann V. Sankoorikal*CRAVATH, SWAINE & MOORE LLPWorldwide Plaza825 Eighth AvenueNew York, NY 10019Telephone: 212-474-1000Facsimile: [email protected]@[email protected] Cobb*Eric J. Stock*HOGAN LOVELLS US LLPColumbia Square555 Thirteenth Street, NWWashington, DC 20004Telephone: 202-637-5600Facsimile: [email protected]@hoganlovel ls.com*Admitted Pro Hac Vice

Counsel for Defendants IBM GlobalFinancing and International BusinessMachines Corporation

15



21/31

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 11th day of November 2011, theattached DEFENDANTS IBM AND IBM GLOBAL FINANCING'S REQUEST FORTHE PRODUCTION OF DOCUMENTS was served upon the below-named counsel ofrecord at the address and in the manner indicated:

Juan Pablo Bauta, IIFerraro Law Firm4000 Ponce de Leon BlvdSuite 700Miami, FL 33146Phone: 305-375-0111Fax: 305-379-6222Case A. DamFerraro Law Firm4000 Ponce de Leon BlvdSuite 700Miami, FL 33146Phone: 305-375-0111Fax: 305-379-6222Email: [email protected]

VIA HAND DELIVERY

VIA HAND DELIVERY

Laura Besvinick

16



22/31

EXHIBIT B



23/31

UNITED STATES DISTRICT COURTSOUTHERN D ISTRICT OF FLORIDA

No. 09:11-cv-80880-KLRQSGI, INC ., a Delaware Corporation,

Plaintiff,v.

IBM GLO BAL FINAN CING, a Division ofInternational Business M achinesCorporation, INTERNATIONA LBUSINESS MACHINESCORPORATION, Parent to and/or d/b/aIBM GLOBAL FINANCING,

Defendants.

DEFENDANTS IBM AND IBM GLO BAL FINANCING'SFIRST SET OF INTERROGATORIES

Pursuant to Rules 26 and 33 of the Fe deral Rules of Civil Procedure andthe local rules of this Court, defendants IBM Global Financing ("IGF") and InternationalBusiness Machines C orporation ("IBM") hereby request that plaintiff QSGI, Inc.("QSG I") answer this First Set of Interrogatories. These interrogatories are to beanswered fully and under oath, within thirty (30) days from the date of service, in themanner prescribed by the Federal Rules of C ivil Procedure and Local Rule 26.1(g) of thisCourt and in accordance w ith the definitions and instructions set forth below.

DEFINITIONS AN D INSTRUCTIONS1. Defendants hereby incorporate by reference the definitions set forth in the

Request for the Production of Docum ents.2. The term "identify" and the phrase "state the identity" shall mean:



24/31

a. in the case of a natural person, to state the person's (1) full name;(2) title; (3) present and/or last known residence address and telephone number;(4) present or last known employer; and (5) present or last known businessaddress and telephone number.

b. in the case of an entity other than a natural person, to state its (1)name; (2) principal place of business; (3) address; and (4) if applicable, place ofincorporation.

c. in the case of a document, to state its (1) date; (2) author(s),addressee(s), and recipient(s); (3) type; (4) gene ral subject matter; and (5)physical or electronic location (or, in the case of a destroyed or discardeddocument, its last known physical or electronic location).

d. in the case of an IBM mainframe, to state its (1) machine type; (2)model numb er; and (3) serial number.

e. in the case of a transaction in which QSG I sold or transferred aused IBM mainframe or a part for a used IBM mainframe, to state the (1) date ofthe transaction; (2) price or other financial terms of the transaction; (3) parties tothe transaction; (4) identity of the IBM mainframe or pa rt that was the subject ofsuch transaction; and (5) docum ents that set forth the terms of the transaction.3. If QSGI ha s a good faith objection to any part of an interrogatory, then the

part objected to should be identified and a response to the rem aining unobjectionable partshould be provided.

4. If QSG I has a good faith objection to any interrogatory or any part thereofbased on attorney-client privilege, work product imm unity, or any other privilege or

2



25/31

imm unity, QSGI shall provide an explanation of the basis therefor, including the specificnature of the privilege or exemption claimed and the detailed grounds for claiming such.

5.f QSGI responds to any interrogatory by reference to records from whichthe answer may be derived or ascertained, as permitted by Fed. R. C iv. P. 33(d):a. the specification of d ocuments p roduced shall be in sufficientdetail to permit IBM to locate and identify the records and to ascertain the answeras readily as could QSGI;b. if the document specified has not been produced, the docum ent

shall be mad e available for inspection and copying within seven (7) days afterservice of the responses to these interrogatories or a date agreed upon by all theparties;

c. QSGI shall mak e available any computerized information orsumma ries thereof that it either has or that it can ad duce; and

d. QSG I shall provide any relevant compilations, abstracts, orsummaries in its custody or readily obtainable by it, unless these materials areprivileged or otherwise imm une from discovery.6.hese interrogatories shall be deemed continuing, requiring QSGI to servesupplemental responses promptly in accordance w ith Rule 26(e) of the Federal Rules of

Civil Procedure.7.ach interrogatory shall be answered on the basis of QSG I's entireknowledge, from all sources, after an appropriate and good faith inquiry has been made.If QSGI is unable to answer any of these interrogatories in full after exercising duediligence to secure the information requested, it should answer to the extent possible,

3



26/31

explain why it is unable to answer the remainder and provide whatever information orknowledge it has concerning the unanswered portion.

INTERROGATORIES1. Identify any and all factual bases for the assertions in paragraph 16 of

QSGI's Amended Complaint that "[i]n or around 2007, IBM instituted a policy changewhereupon it would no longer freely sell QSGI the parts and microcode needed to mo difythe capacity of the used comp uters" and that "IBM's policy change (hereinafter referred

to as the 'six month rule') did not extend to IGF or IGF's customers". (Am . Compl. 16.)

2. Identify each IBM ma inframe that QSGI acquired, including the date ofacquisition, acquisition price, and source (i.e., the person or entity) from which QSG Iacquired it.

3. Identify all orders or requests for upgrades, downgrades, parts, microcodeor any other change to an IBM m ainframe made by QSGI (or any person or entity onbehalf of QSGI) or by any custom er of QSGI to IGF or IBM (co llectively, "orders orrequests"), including:

a. the specific part or microcode that wa s ordered or requested, themainfram e that was the subject of the order or request and that mainframe'sinstallation date, and the nature of the requested change to the IBM mainframe(e.g., upgrade, downgrade, other change to that IBM mainframe, etc.);

b. the entity or person who m ade such order or request, the date ofsuch order or request and to whom such order or request was directed;

4



27/31

c. the customer or other intended recipient of the IBM m ainframe tobe upgraded, dow ngraded, or otherwise changed pursuant to such order orrequest;

d. IBM's or IG F's response (including whether the order or requestwas approved or denied and, if denied, IBM 's or IGF's stated bases for its denial)and the date of such response; and

e. the person and/or en tity that fulfilled such o rder or request (if any),

including (if different) the person and/or e ntity that installed the requested part onor made the requested change to the IBM mainframe.4.or each potential or proposed sale of a used IBM m ainframe that QSGIallegedly lost as a result of IBM's alleged refusal to provide parts or microcode asidentified in respon se in Interrogatory N o. 3, identify:a. docum ents that set forth the proposed terms of the transaction,including the price or financial terms of that potential or proposed sale; and

b. the comp uting solution that the potential customer obtained in lieuof the QSGI offering and from whom such solution was obtained.5.dentify each transaction in which QSG I sold or transferred an IBMmainframe or a part for an IBM mainframe.6.ith respect to QSGI's inventory of used IBM m ainframes, identify:a.he IBM mainframes that comprised, and the value of, QSGI'sIBM mainframe inventory just prior to IBM's purported policy change alleged inparagraph 16 of the Amended Complaint;

5



28/31

b. any change in the IBM m ainframes that comprised, or the value of,QSGI's IBM mainframe inventory as a result of IBM's purported policy change;an d

c. the amount of mo ney QSGI received from, the financial termsrelating to, and the identity of the IBM m ainframes that QSGI sold o r transferredto Top Gun Technolog ies, Inc. or to any other person or entity following IBM'spurported policy change.7. Identify, for each cause of action asserted in the Am ended Co mplaint,

QSGI's com putation of any and all categories of damages or m onetary relief claimed byQSGI unde r that cause of action, the documents or other information on which suchcompu tation is based and all persons with knowledge of the claimed dam ages.

8. Identify the facts and circumstances relating to any docum entsincludingbut not limited to docum ents in storage facilitiesthat QSG I destroyed, discarded, orotherwise failed to preserve since Janu ary 1, 2007, including, without limitation:

a. each docum ent that was destroyed or discarded and the man ner inwhich, and the reason why , it was destroyed or discarded;

b. the storage facility or other p lace of storage at which each suchdocument was stored;

c. the date(s) that each such docum ent was deposited or placed intostorage, the date(s) on which QSG I or any person acting on behalf of QSGIdecided to destroy or discard such documents or was no tified that such documen tswere destroyed or discarded, and the date(s) that each such docum ent wasdestroyed or discarded;

6



29/31

d. the location, if any, of copies, duplicates or alternative sources ofeach destroyed or discarded document; and

e. the persons or entities with knowledge of the facts andcircumstances concerning the storage and/or destruction or discarding of anydocuments (including relevant QSG I personnel, personnel acting on behalf ofQSG I and the relevant individuals at each storage location) and a description ofthe relevant facts and circumstances know n to such persons (including who at

QSGI permitted or decided that documents be de stroyed or discarded).

7



30/31

Dated: December 6, 2011Respectfully submitted,

Laura BesvinickFlorida Bar No. 391158HOGAN LOVELLS US LLP1111 Brickell AvenueSuite 1900Miami, FL 33131Telephone: 305-459-6500Facsimile: [email protected] R. Chesler*Richard J. Stark*Teena-Ann V. Sankoorikal*CRAVATH, SWAINE &MOORE LLPWorldwide Plaza825 Eighth AvenueNew York, NY 10019Telephone: 212-474-1000Facsimile: [email protected]@[email protected] Cobb*Eric J. Stock*HOGAN LOVELLS US LLPColumbia Square555 Thirteenth Street, NWWashington, DC 20004Telephone: 202-637-5600Facsimile: [email protected]@HoganLovells.com

*Admitted Pro Hac Vice

Counsel for Defendants IBM GlobalFinancing and International BusinessMachines Corporation

8



31/31

CERTIFICATE OF SERVICEI HEREBY CERTIFY that , on this 6th day of D ecember 2011, the

attached document was served upon the below-named counsel of record at the addressand in the manner indicated:

Juan Pablo Bauta, IIFerraro Law Firm4000 Ponce de Leon BlvdSuite 700Miami, FL 33146Phone: 305-375-0111Fax: 305-379-6222Case A. DamFerraro Law Firm4000 Ponce de Leon BlvdSuite 700Miami, FL 33146Phone: 305-375-0111Fax: 305-379-6222Email: cxd@ ferrarolaw.com

VIA EMAIL AND U.S. MAIL

VIA EMAIL AND U .S . MAIL

r

Laura Besvinick

9