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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 DEFENDANTS’ SPECIFICATION OF COSTS AND REASONABLE EXPENSES PURSUANT TO ORDER GRANTING DEFENDANTS’ MOTION FOR SANCTIONS Pursuant to the Court’s June 18, 2012 Order Granting Defendants’ Motion for Sanctions, Defendants IBM Global Financing and International Business Machines Corporation (collectively, “IBM” or “Defendants”) hereby submit the following materials in support of their request for attorneys’ fees and costs. 1. Defendants seek reimbursement for $28,615.21 of costs and reasonable expenses they incurred as a result of Plaintiff’s failure to produce Marc Sherman for his duly noticed deposition on May 8, 2012. This sum comprises the costs that IBM incurred in connection with Mr. Sherman’s failure to attend the deposition ($9,256.56), and the reasonable expenses that IBM incurred in bringing its Motion for Sanctions for Failure to Attend a Rule 30(b)(6) Deposition and Individual Deposition (“Motion” (May 16, 2012, ECF No. 81)) and preparing its Reply in Support of the Motion (June 8, 2012, ECF No. 90) ($19,358.65). 2. The information supporting this sum is set forth in the accompanying declaration of Richard J. Stark, executed June 28, 2012, and the exhibits thereto. Case 9:11-cv-80880-KLR Document 100 Entered on FLSD Docket 06/28/2012 Page 1 of 5

Transcript of IBM - Cost and Specifications in Relation to Order for Sanctions

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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

DEFENDANTS’ SPECIFICATION OF COSTS AND REASONABLE EXPENSESPURSUANT TO ORDER GRANTING DEFENDANTS’ MOTION FOR SANCTIONS

Pursuant to the Court’s June 18, 2012 Order Granting Defendants’ Motion for

Sanctions, Defendants IBM Global Financing and International Business Machines Corporation

(collectively, “IBM” or “Defendants”) hereby submit the following materials in support of their

request for attorneys’ fees and costs.

1. Defendants seek reimbursement for $28,615.21 of costs and reasonable expenses

they incurred as a result of Plaintiff’s failure to produce Marc Sherman for his duly noticed

deposition on May 8, 2012. This sum comprises the costs that IBM incurred in connection with

Mr. Sherman’s failure to attend the deposition ($9,256.56), and the reasonable expenses that

IBM incurred in bringing its Motion for Sanctions for Failure to Attend a Rule 30(b)(6)

Deposition and Individual Deposition (“Motion” (May 16, 2012, ECF No. 81)) and preparing its

Reply in Support of the Motion (June 8, 2012, ECF No. 90) ($19,358.65).

2. The information supporting this sum is set forth in the accompanying declaration

of Richard J. Stark, executed June 28, 2012, and the exhibits thereto.

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WHEREFORE, Defendants respectfully request that the Court order Plaintiff to

reimburse Defendants the amount $28,615.21 for the costs and reasonable expenses that IBM

incurred as a result of Mr. Sherman’s failure to appear at the May 8, 2012 deposition.

Dated: June 28, 2012

Respectfully submitted,

/s/ Laura BesvinickLaura BesvinickFlorida Bar No. 391158HOGAN LOVELLS US LLP200 South Biscayne Blvd., Suite 400Miami, FL 33131Telephone: 305-459-6500Facsimile: [email protected]

Evan 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]

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Ty 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

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on the 28th day of June 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 Notices

of Electronic Filing.

/s/ Laura BesvinickLaura BesvinickFlorida Bar No. 391158

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QSGI, INC. SERVICE LIST

Juan Pablo Bauta, IIFerraro Law Firm

4000 Ponce de Leon BlvdSuite 700

Miami, FL 33146Phone: 305-375-0111Fax: 305-379-6222

Melissa Damian ViscontiFerraro Law Firm

4000 Ponce de Leon BlvdSuite 700

Miami, FL 33146Phone: 305-375-0111

Email: [email protected]

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

QSGI, INC.,

Plaintiff,

v. IBM GLOBAL FINANCING, and INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendants.

§ § § § § § § § § § § §

Case No. 09:11-cv-80880-KLR

DECLARATION OF RICHARD J. STARK IN SUPPORT OF SPECIFICATION OF COSTS AND REASONABLE EXPENSES PURSUANT TO ORDER GRANTING

DEFENDANTS’ MOTION FOR SANCTIONS

I, Richard J. Stark, hereby declare as follows:

1. I am a member of the law firm of Cravath, Swaine & Moore LLP

(“Cravath”), and counsel for IBM Global Financing and International Business Machines

Corporation (collectively “IBM” or “Defendants”). I respectfully submit this declaration in

support of Defendants’ Specification of Costs and Reasonable Expenses Pursuant to Order

Granting Defendants’ Motion for Sanctions (“Specification of Costs and Expenses”).

2. On June 18, 2012, the Court granted IBM’s Motion for Sanctions for

Failure to Attend a Rule 30(b)(6) Deposition and Individual Deposition (“Motion” (May 16,

2012, ECF No. 81).) The Court held that IBM is “entitled to reimbursement of the costs

associated with [Marc] Sherman’s failure to appear at the May 8, 2012 deposition and the

expenses incurred in bringing this motion” and ordered IBM to “submit any materials in support

of [its] request for attorneys’ fees and costs to the Court within ten days”. (“Order” at 3 (June

18, 2012, ECF No. 96).)

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3. On June 27, in an effort to avoid burdening the Court with unnecessary

briefing, IBM wrote QSGI by email and asked if QSGI would agree to reimburse IBM’s costs

and reasonable expenses. A true and correct copy of this email is attached as Exhibit A. IBM

provided QSGI with a draft of this declaration, which sets forth: (1) IBM’s costs arising from

QSGI’s failure to produce Mr. Sherman for his deposition on May 8, 2012; and (2) IBM’s

reasonable expenses incurred in bringing its Motion and preparing its Reply in Support of the

Motion (the “Reply” (June 8, 2012, ECF No. 90).) (The draft declaration IBM provided to QSGI

and this declaration are substantively identical, but for the narrative added to this paragraph and

the explanatory footnotes added to paragraph 8.) QSGI did not respond to IBM’s proposal,

prompting IBM to file its Specification of Costs and Expenses and this supporting declaration.

Identity, Experience and Qualifications of Attorneys

4. The attorneys who worked on this matter include myself, as well as

associates Benjamin H. Diessel, Brian M. Jenks, Pawan Nelson, and Evan C. Ennis (collectively,

the “Associates”). The experience and qualifications of the Associates and me, as well as our

respective hourly billing rates, are set forth below.

5. I received an A.B. from Harvard College in 1986 and a J.D. from New

York University School of Law in 1991. I joined Cravath in 1991 and became a Partner in 1999.

Among other jurisdictions, I am admitted to practice before the United States Supreme Court; the

Federal Circuit, the D.C. Circuit, the Second, Third and Seventh Circuits; U.S. District Courts

for the Southern District of New York, Eastern District of New York, and District of Columbia;

and state courts in New York and Connecticut. For over twenty years, my practice has

emphasized antitrust, intellectual property and other technologically intensive litigation for both

plaintiffs and defendants. I have recently represented IBM, Qualcomm, and Bristol-Myers

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Squibb in antitrust actions. I have also published articles and given talks on subjects including

patent, antitrust and securities law.

6. The Associates’ practices include a range of complex litigation matters,

including antitrust and intellectual property matters. Mr. Diessel graduated from University of

Michigan Law School, where he received a J.D. degree in 2008. Mr. Diessel has worked at

Cravath from 2008 to 2009 and from 2010 to the present (from 2009 to 2010, he clerked for a

federal judge). Mr. Jenks graduated from University of Wisconsin Law School, where he

received a J.D. degree in 2009. Mr. Jenks worked as a Special Assistant District Attorney in the

Richmond County District Attorney’s Office from September 2009 until July 2010, and has

worked at Cravath since 2010. Mr. Nelson graduated from Columbia Law School, where he

received a J.D. degree in 2009. He has worked at Cravath since 2010. Ms. Ennis graduated

from Cornell Law School, where she received a J.D. degree in 2010. From 2010 to 2011, Ms.

Ennis worked as a Public Service Attorney at the New York City Law Department, and she has

worked at Cravath since 2011. Messrs. Diessel, Jenks, Nelson and Ennis are each admitted to

practice law in the State of New York.

7. The following schedule lists the hourly billing rates for me and the

Associates. These rates are reasonable and customary rates for lawyers with comparable

experience at Cravath’s peer law firms.

Lawyer Year Graduated from Law School Rate

Richard J. Stark 1991 $1,004/hour

Benjamin H. Diessel 2008 $613/hour

Brian M. Jenks 2009 $474/hour

Pawan Nelson 2009 $474/hour

Evan C. Ennis 2010 $355/hour

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Costs Associated with Nonappearance

8. IBM seeks reimbursement of certain costs that it incurred due to Mr.

Sherman’s nonappearance. Specifically, IBM requests that QSGI reimburse IBM for the cost of:

airfare and attorney travel time between New York and Miami for two attorneys (myself and Mr.

Nelson); one night of accommodations in Miami for each of the attorneys; and the cost of the

court reporter. The following schedule details these costs, true and correct copies of supporting

documentation for which is attached hereto as Exhibits B–F.

Expense Cost

Round-trip plane ticket for Richard J. Stark $1,221.391

4 hours travel time for Richard J. Stark $4,016.00

Hotel for Richard J. Stark (one night) $285.892

Round-trip plane ticket for Pawan Nelson $1,221.393

4 hours travel time for Pawan Nelson $1,896.00

Hotel for Pawan Nelson (one night) $285.894

Court reporter $330.005

TOTAL COSTS $9,256.56

1 This sum comprises the original airfare ($1,235.33, see Ex. B at 2), adjusted downward to account for the

savings resulting from the change to the return flight that was made following notice from QSGI that Mr. Sherman would not appear ($511.80 charge for new return flight ticket, see Ex. B at 4, and $50 charge for ticket change fee, see Ex. B at 6; minus $575.74 reimbursement for refundable ticket, see Ex. B at 8).

2 This sum comprises the hotel’s nightly rate ($253.00) and applicable taxes ($17.71 and $15.18). See Ex. C. Charges for room service are not included.

3 This sum comprises the original airfare ($1,235.33, see Ex. D at 2), adjusted downward to account for the savings resulting from the change to the return flight that was made following notice from QSGI that Mr. Sherman would not appear ($511.80 charge for new return flight ticket, see Ex. D at 4, and $50 charge for ticket change fee, see Ex. D at 6; minus $575.74 reimbursement for refundable ticket, see Ex. D at 8).

4 This sum comprises the hotel’s nightly rate ($253.00) and applicable taxes ($17.71 and $15.18). See Ex. E. Charges for room service are not included.

5 See Ex. F.

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9. The above costs are a conservative accounting of a subset of the costs

incurred by IBM due to Mr. Sherman’s nonappearance. For example, IBM does not seek

reimbursement of any time (aside from travel time) that attorneys spent preparing for Mr.

Sherman’s deposition; for costs of ground transportation and meals; or for costs of preparing and

shipping exhibits. IBM also mitigated its costs, where feasible, for example by cancelling

videographer services after counsel for QSGI stated that neither Mr. Sherman nor counsel

intended to appear at the deposition.

Reasonable Expenses Incurred in Bringing the Motion

10. As noted by the Court, IBM sought to avoid the expenses associated with

bringing the Motion and preparing the Reply by conferring in good faith with QSGI. (Order at

2.) But QSGI refused to reimburse IBM’s travel costs, prompting IBM to bring the Motion and

incur the associated costs. (Id.) Thus, pursuant to the Court’s Order, IBM now also seeks

reimbursement of its reasonable expenses in connection with bringing the Motion. (Id. at 3.)

11. The Motion and Reply were prepared by me and the Associates during

May and June 2012. Preparing the Motion and Reply required: legal research; drafting, editing

and reviewing the Motion and Reply (and the associated declarations); preparing the Motion and

Reply (and the associated declarations and exhibits) for filing; and associated conferences,

correspondence and communications.

12. Cravath provides IBM with invoices on a monthly basis, each of which

includes fees for all the work done on this matter by various attorneys and staff for a given

month. Cravath’s invoices include diaries that record the time worked by each timekeeper and

descriptions of the work done. However, neither the diaries nor the invoices separately break out

the time worked on each individual task, such as a motion. Therefore, for ease of reference, I

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have reviewed the information from the May invoice and the relevant information that will be

included in the upcoming June invoice and provide below a conservative estimate of the time

spent on the Motion and Reply by myself and the Associates.

Attorney Date Tasks Hours Fee

Richard J. Stark

5/14/12 Review and revise Motion. 0.6 $602.40

5/15/12 Finalize Motion. 0.2 $200.80

6/6/12 Review and revise draft Reply. 0.6 $602.40

6/7/2012 Review and revise Reply. 0.3 $301.20

Benjamin H. Diessel

5/13/12 Review and revise Motion. 1.0 $613.00

5/14/12 Conference regarding Motion. 0.2 $122.60

5/31/12 Draft Reply. 2.5 $1,532.50

6/1/12 Draft Reply and correspondence with IBM legal team regarding Reply.

2.3 $1,409.90

6/2/12 Draft and revise Reply. 1.8 $1,103.40

6/3/12 Draft and revise Reply; correspondence with IBM legal team regarding Reply.

2.5 $1,532.50

6/5/12 Correspondence with IBM legal team regarding Reply.

0.2 $122.60

6/6/12 Review comments to Reply and revise Reply.

1.1 $674.30

6/8/12 Review and revise Reply; preparation of same for filing.

2.1 $1,287.30

Brian M. Jenks

5/9/12 Revise Motion. 4.0 $1,896.00

5/11/12 Finalize Motion.

1.0 $474.00

5/15/12 Additional revisions to Motion; preparation of Motion for filing.

4.0 $1,896.00

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Exhibit A

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2012-06-27 EMAIL from B. Diessel to J. Bauta re: QSGI's reimbursement to IBM pertaining to costs associated with Marc Sherman 's failure to attend deposition, also attached Draft Stark DeclarationBenjamin Diessel to: jpb, aak, mdv, ncb 06/27/2012 05:20 PM

Cc:Richard Stark, Teena-Ann Sankoorikal, ty.cobb, laura.besvinick, eric.stock

Bcc: IBM562

Juan and Amanda:

As you know, the Court on June 18 granted IBM's Sanctions Motion and held that IBM is entitled to costs associated with Marc Sherman's failure to attend the May 8 deposition and the reasonable expenses incurred in bringing its Sanctions Motion. The Court asked IBM to submit its materials in support of these costs and reasonable expenses within 10 days (i.e., by tomorrow), which IBM is prepared to do.

In an effort to avoid burdening the Court with unnecessary briefing, however, we write to ask if QSGI will agree to reimburse IBM for its costs and reasonable expenses. These include $9,256.56 in costs that IBM incurred in connection with Mr. Sherman’s nonappearance, and $19,358.65 in reasonable expenses incurred in bringing the Motion, totaling $28,615.21. IBM's calculation and support for these sums are included in the draft declaration of Richard Stark, which we attach for your review.

Please let us know by 5 p.m. tomorrow whether QSGI will agree to reimburse IBM for these costs and reasonable expenses. I am generally available in my office to discuss the matter for the remainder of this evening as well as tomorrow. If we do not hear from you by 5 p.m. tomorrow, we will submit our materials (including a finalized version of the Stark declaration) to the Court.

Draft Stark Declaration (6-27-12, 5 pm).pdfDraft Stark Declaration (6-27-12, 5 pm).pdf

Benjamin DiesselCravath, Swaine & Moore LLP825 Eighth AvenueNew York, NY 10019(212) 474-1177 (direct)(212) 474-3700 (fax)

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Exhibit B

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Exhibit C

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Exhibit D

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Exhibit E

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Exhibit F

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