Case 9:11-cv-80880-KLR Document 27 Entered on FLSD Docket 11/04/2011 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case #11-80880-CIV-RYSKAMP QSGI, Inc., Plaintiff vs. IBM GLOBAL FINANCING, a Division of International Business Machines Corporation, INTERNATIONAL BUSINESS MACHINES CORPORATION, Parent to and/or d/b/a IBM GLOBAL FINANCING, Defendant /

JOINT SCHEDULING REPORT

Pursuant to Fed. R. Civ. P. 26(f) and Local Rule 16.1(b)(2), Plaintiff QSGI, Inc. and Defendants International Business Machines Corporation and IBM Global Financing (collectively IBM) hereby file their Joint Scheduling Report. The Joint Proposed Scheduling Order is attached hereto as Exhibit A. A. LIKELIHOOD OF SETTLEMENT

The parties have not discussed settlement. The parties are amenable to voluntary settlement discussion following substantial fact discovery. B. LIKELIHOOD OF APPEARANCE IN THE ACTION OF ADDITIONAL PARTIES

The parties have agreed that no additional parties will appear in this case, including through joinder or amended pleading. C. PROPOSED LIMITS ON TIME i. To amend the pleadings: The parties have agreed that there will be no amendments to the pleadings after November 29, 2011, absent good cause.

Case 9:11-cv-80880-KLR Document 27 Entered on FLSD Docket 11/04/2011 Page 2 of 10

ii.

For discovery and motions: The parties recommend that this case be assigned to the Standard Track. The parties have agreed to the following schedule: Event First day on which to propound discovery requests. Until the entry of a suitable Protective Order, the parties agree that any information produced in response to a discovery request and that is designated ConfidentialAttorneys Eyes Only will be limited to outside counsel of record, and three in-house counsel designated and disclosed by each party. Disclosure to experts will be subject to the terms contained in a Protective Order to be agreed by the parties and there will be no disclosure to experts until entry of a Protective Order. In addition, no documents or information provided pursuant to a discovery request will be used for any purpose outside of this litigation or be disseminated publicly, including to any non-party. Upon entry of a Protective Order, the terms contained therein will govern the treatment of information produced in this litigation. Initial disclosures will be made. All fact discovery, including third-party discovery, must be completed. Document requests, interrogatories and requests for admissions propounded upon parties must be served no later than March 15, 2012, except in the event that they relate to information first discovered in a deposition or in documents produced or written discovery responses provided after March 15, 2012, in which case such additional discovery requests may be propounded within two weeks of that deposition, production or written response. Apart from those documents produced in response to requests served after March 15, 2012 pursuant to the foregoing, document production will be substantially completed by March 15, 2012. Not later than April 15, 2012, the parties will exchange privilege logs corresponding to the production of documents through March 15, 2012. Fact depositions will not begin until March 15, 2012.

Date October 21, 2011

December 5, 2011 May 15, 2012

Case 9:11-cv-80880-KLR Document 27 Entered on FLSD Docket 11/04/2011 Page 3 of 10

June 12, 2012

On the issues as to which they bear the burden of proof, the parties shall furnish opposing counsel with a written list containing the names and addresses of all expert witnesses intended to be called at trial, together with their written report(s) and other information required by Fed. R. Civ. P. 26(a)(2). Only those expert witnesses shall be permitted to testify. The parties shall furnish opposing counsel with a written list containing the names and addresses of all rebuttal expert witnesses intended to be called at trial, together with their written report(s) and other information required by Fed. R. Civ. P. 26(a)(2), and only those rebuttal expert witnesses listed shall be permitted to testify. No additional replies shall be filed. Following this disclosure, the parties shall make their respective experts available for deposition. The experts depositions may be conducted without further order from the Court and shall commence no earlier than July 12, 2012. All expert discovery, including depositions of expert witnesses, must be completed. Last date on which dispositive pretrial motions and memoranda of law must be filed. Motions to exclude an experts proposed testimony under Fed. R. Evid. 702 and memoranda of law must be filed. Parties shall exchange trial witness lists, exhibit lists and designations of deposition testimony. Parties shall exchange objections to witnesses and exhibits, and exchange counter-designations and objections to deposition testimony. The party receiving the October 10, 2012 disclosure shall also identify any rebuttal witnesses intended to address any proposed exhibit or testimony (whether designated or intended to be called live). All motions in limine shall be filed. All responses to motions in limine shall be filed. No replies shall be allowed. Joint pretrial stipulation shall be filed.

July 12, 2012

August 10, 2012

September 12, 2012

September 19, 2012

October 10, 2012

October 24, 2012

November 7, 2012 November 21, 2012

November 28, 2012

Case 9:11-cv-80880-KLR Document 27 Entered on FLSD Docket 11/04/2011 Page 4 of 10

December 5, 2012

Requested final pretrial conference date and proposed jury instructions shall be filed. Requested trial date. For depositions: The parties agree on a 70-hour per side limit on depositions during fact discovery exclusive of expert witnesses. Expert witnesses will be subject to a 30-hour per side limit. For depositions of party fact witnesses and expert witnesses during fact and expert discovery, the time on the record (as tracked by the Court reporter) associated with direct questioning of the witness by the party that sought the deposition will count towards the hourly fact or expert total of that party. Time spent by a party on cross of its own witness or expert witness (as tracked by the Court reporter) will be counted towards that partys fact or expert hour limit. For third-party witness depositions, the time on the record kept by the Court reporter during which a party is involved in direct questioning of the third-party witness will count towards that partys fact witness hourly total.

December 12, 2012 iii.

D.

PROPOSAL FOR THE FORMULATION AND SIMPLIFICATION OF ISSUES INCLUDING THE ELIMINATION OF FRIVOLOUS CLAIMS OR DEFENSES AND THE NUMBER OF AND TIMING OF MOTIONS FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT

The parties will cooperate to eliminate unnecessary issues by stipulation to the extent possible. E. THE NECESSITY OR DESIRABILITY OF AMENDMENTS/PLEADING

The parties have agreed that there will be no amendments to the pleadings after November 29, 2011, absent good cause. F. THE POSSIBILITY OF OBTAINING ADMISSIONS OF FACT AND OF DOCUMENTS WHICH WILL AVOID UNNECESSARY PROOF, STIPULATIONS REGARDING AUTHENTICITY OF DOCUMENTS AND THE NEED FOR ADVANCE RULINGS FROM THE COURT ON THE ADMISSIBILITY OF EVIDENCE

The parties will cooperate to the extent possible to obtain admissions of fact and documents that will avoid unnecessary proof at trial.

Case 9:11-cv-80880-KLR Document 27 Entered on FLSD Docket 11/04/2011 Page 5 of 10

G.

SUGGESTIONS FOR AVOIDANCE OF UNNECESSARY PROOF AND ACCUMULATIVE EVIDENCE

The parties will cooperate in good faith to eliminate unnecessary proof and cumulative evidence at trial. H. SUGGESTIONS TO THE ADVISABILITY OF REFERRING MATTERS TO MAGISTRATE JUDGE OR MASTER

The parties do not consent to trial before a Magistrate Judge. I. PRELIMINARY ESTIMATE OF TIME REQUIRED FOR TRIAL

The parties estimate that trial will require 5 days. J. REQUEST DATE OR DATES FOR CONFERENCES BEFORE TRIAL, A FINAL PRETRIAL CONFERENCE AND TRIAL

The parties request that a final pretrial conference be held on December 5, 2012. The parties request that trial be set for December 12, 2012. K. OTHER INFORMATION THE PARTIES DEEM HELPFUL TO THE COURT IN SETTING THE CASE FOR STATUS OR PRETRIAL CONFERENCE

None. L. AGREEMENT ON ELECTRONICALLY STORED INFORMATION (ESI) i. Electronic Keyword Searching: The parties will conduct electronic searches on each of the storage media described in Paragraphs (ii)(iii) using search terms as agreed by the parties. (1) (2) The parties agree to exchange their search term as provided below in paragraph (vi). Each party must employ search tools and techniques capable of searching the complete contents of the identified ESI, including, but not limited to, the contents of e-mail container files (e.g., PST files, OST files, NSF files), compressed or encrypted files. Prior to performing searches, each party will use its best efforts to filter out non-unique, common system files and application executables by using a commercially reasonable hash matching process (e.g., NIST NSRL hash sets). Common file types which may be filtered using this hash matching process include, but are not limited to, the following:

Case 9:11-cv-80880-KLR Document 27 Entered on FLSD Docket 11/04/2011 Page 6 of 10

WINNT, LOGS, DRVS, MP3, Advanced Streaming Format (asf), AOL 4.0 file (ud), Automation Object Library (olb), C/C++ Program File (c), C++ Builder 6 (cpp), Channel Definition Format (cdf), Creatures Object Source (cos), Dictionary file (dic), Executable (exe), Hypertext Cascading Style Sheet (css), Javascript Source code (js), Label Pro Ver. 2.0-3.02 Data File (lpd), Office Data File (NICK), Office Profile Settings File (ops), Outlook Rules Wizard File (rwz), Scrap Object (none), System File (dll), Temporary File (tmp), Windows Error Dump (dmp), Windows Media Player Skin Package (wmz), and Windows NT/2000 Event Viewer Log File (evt). However, audio, video, and image files shall not be excluded from examination and production if they are attachments to responsive e-mails or otherwise responsive. After performing searches, each party will utilize commercially reasonable efforts to filter out duplicate ESI within each custodian. Any search methodology employed must address opening of compound and nested files and decompression of archives and generate an exceptions log flagging files not searchable as text (e.g., encrypted files for which a password could not be ascertained or defeated). The search utilities to be employed must support the use of stemmed searches (i.e., using ! to expand a word root) and Boolean searches. The searches are to not be casesensitive (except where expressly specified). All parties agree that their respective search tools and consultants will adhere to the requirements of this Agreement. ii. Local Storage Media: The parties will search, in the manner agreed upon above, all parts of all local and external hard drives and other ESI venues (including, but not limited to, recordable optical media, media cards, thumb drives, non-volatile memory, floppy disks or personal computing devices) for each custodian agreed to by the parties who reasonably anticipates having responsive ESI or for each custodian who are known or assumed to have responsive ESI on their personal computing devices, unless the parties have agreed that such collection would be unduly burdensome. Servers: The parties will search, in the manner agreed upon above, the servers that a party reasonably believes contain a custodians ESI responsive to any request propounded under Fed. R. Civ. P. Rule 34. This includes, but is not limited to, Microsoft Exchange servers, intranet servers, production servers, non-production servers, network shares, public data shares, and database servers. ESI will be copied off of the servers to be searched. QSGI will 6

iii.

Case 9:11-cv-80880-KLR Document 27 Entered on FLSD Docket 11/04/2011 Page 7 of 10

also be required to search back-up tapes and other archival media and legacy systems, to the extent any such media exist. IBM will not be required to search back-up tapes and other archival media and legacy systems absent good cause and an agreement or order regarding an appropriate cost-shifting arrangement. iv. Central Repositories and Databases: In addition to searches on each of the storage media described in Paragraphs (ii)-(iii) using search terms and custodians as agreed by the parties, the parties will undertake reasonable efforts to collect electronic and/or hard copy documents of central repositories or electronic or hard copy extracts from databases (or portions thereof) that a party reasonably believes may contain documents responsive to any request propounded under Fed. R. Civ. P. Rule 34. Nothing herein would require a party to produce such central repository documents or database extracts in native form. Any party seeking production of such central repository or database in native format bears the burden of establishing good cause for production in such format. Format: The parties will produce responsive audio and video files in native form with unique identifying numbers associated with the native documents. The parties will query databases and produce responsive query results in TIFF format. The parties will produce spreadsheets and PowerPoint presentations in native form with extracted text and the original metadata intact, along with unique identifying numbers associated with the native documents. The parties will produce all other responsive documents in a single page TIFF format with Extracted Text or OCR performed and a unique Bates number. For all electronic documents with attachments not otherwise removed by either the custodian in sending or storing said email or by an email client (including removal via Lotus Notes my attachments tool), the attachments will be associated electronically with the document and will follow the document sequentially in the production. The parties will provide load files in the format preferred by each requesting party. Either party may request that a reasonable number of additional documents be produced in native format with original metadata intact. The requesting party must send a letter to the producing party specifying by Bates number range the exact document to be produced in native format and a short statement regarding the rationale for producing the document in native format. Within one week, the producing party must either produce the document in native format or state its objections. If the parties cannot resolve their difference, the party seeking such production bears the burden of seeking relief from the Court.

v.

Case 9:11-cv-80880-KLR Document 27 Entered on FLSD Docket 11/04/2011 Page 8 of 10

vi.

Timing: The parties will meet and confer to agree upon a list of search terms and custodians. Such lists will be finalized by December 1, 2011. The parties will produce documents identified through the use of search terms, by custodian, on a rolling basis, and will make good faith efforts to begin no later than January 1, 2012. This provision regarding timing only applies to the documents identified through the search term process. Responsive documents that will be gathered and produced other than through the use of search terms, including for example hard copy documents, agreements, minutes, and technical and marketing documentation, shall be reviewed for responsiveness. Metadata: The parties agree to exchange the following metadata, if available, for imaged and native files: Image Beginning / Ending Range; Image Attachment Beginning / Ending Range; Document Type; Author/From; to; CC; BCC; Subject/Title; Body; Date; Date Sent; Time Sent; Entry ID; Message ID; Date Last Modified; Date Created; File Name; Source File; Folder; Custodian; File Size; File Extension; and MD5 Hash Value. Privilege and Confidentiality: If in TIFF format, the documents will be served with appropriate Bates numbers and confidentiality designations in accordance with the separate Protective Order in this matter. If in native format, the documents may have their confidentiality designations noted by the inclusion of a suffix to the Bates number. For example, confidential documents would be labeled with the Bates Number followed by Conf (ex: W000000001_Conf.xls). Documents unintentionally produced without a confidentiality designation may be retroactively designated in the same manner and shall be treated appropriately from the date written notice of the designation is provided to the receiving party. For any documents or information produced in this litigation prior to the entry of a Protective Order, the terms set forth herein control such production until entry of such Order. Exempted Materials: Parties will have no obligation to search for or produce chat messages (such as Google gchat or AOL instant messages). Parties will have no obligation to search for or produce SMS or text messages sent from or to mobile devices (such as Blackberry SMS messages), whether those messages are stored on the mobile device or on a server or other location, except to the extent that such SMS or text messages are included or excerpted into other ESI (such as email). Modification of Obligations: The present agreement concerning the parties obligations with respect to ESI is without prejudice to

vii.

viii.

ix.

x.

Case 9:11-cv-80880-KLR Document 27 Entered on FLSD Docket 11/04/2011 Page 9 of 10

modification in light of discovery concerning the parties document retention practices and sources of documents. Dated: November 4, 2011 Respectfully submitted, /s/ Juan Pablo Bauta, II Juan Pablo Bauta, II Case A. Dam FERRARO LAW FIRM 4000 Ponce de Leon Blvd Suite 700 Miami, FL 33146 Phone: 305-375-0111 Fax: 305-379-6222 Counsel for Plaintiffs QSGI, Inc. /s/ Laura Besvinick Laura Besvinick Florida Bar No. 391158 HOGAN LOVELLS US LLP 1111 Brickell Avenue Suite 1900 Miami, FL 33131 Telephone: 305-459-6500 Facsimile: 305-459-6550
Laura.Besvinick@HoganLovells.com

Ty Cobb* 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 J. Stock* HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 Telephone: 212-918-3000 Facsimile: 212-918-3100 Eric.Stock@hoganlovells.com

Case 9:11-cv-80880-KLR Document 27 Entered on FLSD Docket 11/04/2011 Page 10 of 10

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 *Admitted Pro Hac Vice Counsel for Defendants IBM Global Financing and International Business Machines Corporation

10

Case 9:11-cv-80880-KLR Document 27-1 Entered on FLSD Docket 11/04/2011 Page 1 of 6

EXHIBIT A

Case 9:11-cv-80880-KLR Document 27-1 Entered on FLSD Docket 11/04/2011 Page 2 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case #11-80880-CIV-RYSKAMP QSGI, Inc., Plaintiff vs. IBM GLOBAL FINANCING, a Division of International Business Machines Corporation, INTERNATIONAL BUSINESS MACHINES CORPORATION, Parent to and/or d/b/a IBM GLOBAL FINANCING, Defendant /

SCHEDULING ORDER
Pursuant to Local Rule 16.1(b)(3), IT IS ORDERED AND ADJUDGED as follows: 1. No pretrial conference shall be held in this action, unless the parties so request

or the Court determines, sua sponte, that a pretrial conference is necessary. Should a pretrial conference be set, the compliance deadlines as set forth in the remainder of this Order shall remain unaltered. 2. Counsel shall meet at least ONE MONTH prior to the beginning of the trial

calendar to confer on the preparation of a pretrial stipulation. 3. The joint pretrial stipulation shall be filed on or before the date set forth in the

attached Notice of Trial and shall conform to Local Rule 16.1(e). The Court will not allow unilateral pretrial stipulations. 4. In cases tried before a jury, each party shall file the proposed jury instructions

at least ONE WEEK prior to the beginning of the trial calendar. Additionally, one copy of the proposed jury instructions shall be sent in Word or WordPerfect format to Ryskamp@flsd.uscourts.gov. Each jury instruction shall be typed on a separate sheet and must be supported by citation of authority. In preparing their requested jury instructions, the

Case 9:11-cv-80880-KLR Document 27-1 Entered on FLSD Docket 11/04/2011 Page 3 of 6

parties shall utilize as a guide the Pattern Jury Instructions for civil cases approved by the United States Eleventh Circuit, including the Directions to Counsel contained therein. At the close of the evidence, a party may file additional instructions covering matters occurring at the trial that could not reasonably be anticipated and, with the Courts permission file untimely requests for instructions on any issue. 5. In cases tried before the Court, each party shall file the proposed findings of

fact and conclusions of law at least ONE WEEK prior to the beginning of the trial calendar. Proposed conclusions of law shall be supported by citations of authority. 6. All exhibits must be pre-marked. The plaintiff and defendant shall both mark

their exhibits numerically. In addition to the deadline associated with exchange of exhibits between parties, a typewritten exhibit list setting forth the number and description of each exhibit shall be submitted at the time of trial. The parties shall submit said exhibit list on Form AO 187, which is available from the Clerks office. All electronically filed exhibits should be listed as one attachment unless over 5mb (100 pages). 7. A motion for continuance shall not stay the requirement for the filing of a

pretrial stipulation and, unless an emergency situation arises, a motion for continuance will not be considered unless it is filed at least twenty (20) days prior to the date on which the trial calendar is scheduled to commence. 8. Non-compliance with any provision of this Order may subject the offending

party to sanctions or dismissal. It is the duty of all counsel to enforce the timetable set forth herein in order to ensure an expeditious resolution of this case. With regard to interim deadlines that do not require submissions to or appearances before the Court, the parties may, upon agreed-upon stipulation, move such deadlines. 9. The following timetable shall govern the pretrial procedure in this case. This

schedule shall not be modified absent compelling circumstances. Date October 21, 2011 Event First day on which to propound discovery requests. Until the entry of a suitable Protective Order, the parties agree that any information produced in response to a discovery request and that is designated ConfidentialAttorneys Eyes Only will be limited to outside counsel of record, and three in-house counsel designated and disclosed by each

Case 9:11-cv-80880-KLR Document 27-1 Entered on FLSD Docket 11/04/2011 Page 4 of 6

party. Disclosure to experts will be subject to the terms contained in a Protective Order to be agreed by the parties and there will be no disclosure to experts until entry of a Protective Order. In addition, no documents or information provided pursuant to a discovery request will be used for any purpose outside of this litigation or be disseminated publicly, including to any non-party. Upon entry of a Protective Order, the terms contained therein will govern the treatment of information produced in this litigation. December 5, 2011 May 15, 2012 Initial disclosures will be made. All fact discovery, including third-party discovery, must be completed. Document requests, interrogatories and requests for admissions propounded upon parties must be served no later than March 15, 2012, except in the event that they relate to information first discovered in a deposition or in documents produced or written discovery responses provided after March 15, 2012, in which case such additional discovery requests may be propounded within two weeks of that deposition, production or written response. Apart from those documents produced in response to requests served after March 15, 2012 pursuant to the foregoing, document production will be substantially completed by March 15, 2012. Not later than April 15, 2012, the parties will exchange privilege logs corresponding to the production of documents through March 15, 2012. Fact depositions will not begin until March 15, 2012. On the issues as to which they bear the burden of proof, the parties shall furnish opposing counsel with a written list containing the names and addresses of all expert witnesses intended to be called at trial, together with their written report(s) and other information required by Fed. R. Civ. P. 26(a)(2). Only those expert witnesses shall be permitted to testify. The parties shall furnish opposing counsel with a written list containing the names and addresses of all rebuttal expert witnesses intended to be called at trial, together with their written report(s) and other information required by Fed. R. Civ. P. 26(a)(2), and only those rebuttal expert witnesses listed shall be permitted to testify. No additional replies shall be filed. Following this disclosure, the parties shall make their respective experts available for deposition. The experts depositions may

June 12, 2012

July 12, 2012

Case 9:11-cv-80880-KLR Document 27-1 Entered on FLSD Docket 11/04/2011 Page 5 of 6

be conducted without further order from the Court and shall commence no earlier than July 12, 2012. August 10, 2012 All expert discovery, including depositions of expert witnesses, must be completed. Last date on which dispositive pretrial motions and memoranda of law must be filed. Motions to exclude an experts proposed testimony under Fed. R. Evid. 702 and memoranda of law must be filed. Parties shall exchange trial witness lists, exhibit lists and designations of deposition testimony. Parties shall exchange objections to witnesses and exhibits, and exchange counter-designations and objections to deposition testimony. The party receiving the October 10, 2012 disclosure shall also identify any rebuttal witnesses intended to address any proposed exhibit or testimony (whether designated or intended to be called live). All motions in limine shall be filed. All responses to motions in limine shall be filed. No replies shall be allowed. Joint pretrial stipulation shall be filed. Requested final pretrial conference date and proposed jury instructions shall be filed.

September 12, 2012

September 19, 2012

October 10, 2012

October 24, 2012

November 7, 2012 November 21, 2012

November 28, 2012 December 5, 2012

10. 11. 12.

This case is assigned to the Standard track. This is a Jury trial. In addition to any other clawback protections that may be set forth in the

Protective Order entered in this matter or elsewhere, and pursuant to Rule 502(d) of the Federal Rules of Evidence, the disclosure of any privileged documents (whether discovered either by the party producing or receiving such information) shall not be deemed a waiverin this litigation

Case 9:11-cv-80880-KLR Document 27-1 Entered on FLSD Docket 11/04/2011 Page 6 of 6

or in any other proceeding, including in Federal, State, arbitral, foreign or other proceedingsof the applicable privilege or protection. 13. 14. Trial date and calendar call will be set by separate notice. If this case is settled, counsel are directed to inform the Court promptly by

calling chambers and submitting an appropriate order for dismissal, within ten (10) days of notification of settlement to the Court, pursuant to Fed. R. Civ. P. 41(a)(1).

Dated this___ day of _____________, 2011.

KENNETH L. RYSKAMP United States District Judge copies provided: