Ceglia v. Zuckerberg et al
MEMORANDUM IN SUPPORT re 231 MOTION for Temporary Restraining Order Notice of Motion MOTION for Sanctions Notice of Motion byPaul D. Ceglia. (Attachments: # 1 Certificate of Service, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M)(Boland, Dean)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
Civil Action No. : 1:10-cv-00569-RJA
MARK ELLIOT ZUCKERBERG, Individually, and
MEMORANDUM OF LAW IN
SUPPORT OF MOTION FOR
ORDER AND FOR SANCTIONS
AGAINST DEFENDANTS AND
BRIEF BACKGROUND FACTS
Plaintiff has come across evidence that Defendants and defense counsel have
suppressed evidence, made fraudulent arguments related to that suppressed
evidence and actively sought, encouraged, urged and solicited destruction of that
evidence from those whom have possession of it. They have engaged in these acts
knowingly, intentionally and with the full knowledge of the litigation hold
responsibilities they accepted very early on in this case.
THE SUPPRESSED EVIDENCE
That evidence consists of the forensic copies of at least five computers
belonging to and used by Defendant Zuckerberg while a student at Harvard.
Exhibit A at 19-21.
Those computers are “electronic media” also known as
“electronic assets” containing “electronic evidence” as those terms have been used
throughout this litigation.
These electronic assets contain electronic communications by Zuckerberg
from 2003-2004 while a student at Harvard. Exhibit G. Those electronic assets
potentially include an email server. Id. Forensic copies of those five computers, and
others listed on Exhibit A at 19-21, were created by Parmet and Associates (Parmet)
following an order entered in the ConnectU case. Id. at 2, just above the start of
This source of electronic evidence has only been searched in that case for
evidence of “Computer Code.” Id. at 7, ¶4. It has never been searched for any other
information, including evidence of electronic communications.
(“Only files, file
fragments, or metadata related to the aforementioned computer program code or
database definitions shall be collected and considered as possibly relevant.”) Id. at
IMMINENT IRREPARABLE HARM
That evidence is in danger of imminent destruction per the court order that is
Exhibit A entered in the ConnectU v. Facebook, Zuckerberg, et. al. Case No. 1:07cv-10593, United States District Court for the District of Massachusetts.
The evidence is set to be “erased” and “scrubbed” “[u]pon termination of this
litigation and all appeals….” Id. at 15, ¶13.
Defense counsel in this case, namely from the Orrick Law Firm, have been
communicating with relevant parties in the ConnectU case demanding the evidence
be destroyed and seeking confirmation of its destruction as recently as August of
2011. See Exhibits E and F, communication from Orrick Law Firm attorney Monte
Cooper seeking such evidence destruction confirmation.
Exhibit F is specifically
directed at a confirmation from Parmet that all evidence listed in the Exhibit A at
19-21 has been destroyed by Parmet.
Plaintiff’s counsel is unaware of whether
Parmet or any other parties have complied with Defendants’ counsel’s demands up
to this point, however, they could comply at any moment destroying all the relevant
evidence listed in Exhibit A at 19-21.
The docket in the ConnectU case reveals that there are only post-settlement
motions pending that could be ruled upon, and denied, at any time triggering the
destruction of the now preserved computers. Exhibit B - Docket in ConnectU case.
Defendants in ConnectU, the same Defendants in this case, have filed a
sealed motion urging the court deny those post-settlement motions to preserve
evidence. Exhibit B at 15, the description for ConnectU case Docket Number 351.
Defense Counsel in this case, namely the Orrick law firm, have solicited the
destruction of the evidence in Exhibit A at 19-21. See Exhibits E and F.
The forensic copies of the five computers owned and used by Defendant
Zuckerberg in 2003-2004 while a Harvard student, listed in Exhibit A, are
scheduled to be destroyed.
Id. at 15, ¶13.
Defendants in this case are actively
petitioning the court in the ConnectU case to hasten destruction of that evidence.
Exhibit B at 15, the description for ConnectU case Docket Number 351. Defendants
and defense counsel in this case have actively sought destruction of this relevant
and discoverable evidence even after this case was filed! As of this date, Plaintiff
has no evidence that items in Exhibit A at 19-21 has been destroyed.
evidence is destroyed, electronic communications, electronic data, electronic
evidence and electronic assets relevant to multiple issues in this case will be
RELEVANCE OF THE EVIDENCE SUPPRESSED
BY DEFENDANTS AND THEIR COUNSEL
Since the inception of this case, the parties and the court have discussed the
inspection of Ceglia’s “electronic assets,” “electronic media,” “electronic records,”
“electronic evidence” and “electronic data.” (Doc. No. 97-3 “[T]he Electronic Asset
inspection will begin at 9:00 am.”; Defendants reminded Ceglia, “Plainitiff has had
an ongoing duty to preserve all evidence relevant to this litigation [including] Every
computer or other electronic media that Plaintiff has used since the commencement
of this litigation and before is relevant….[W]e expect that all of those electronic
assets...will be produced to Defendants….” Id. at 2.; “I write to raise a few issues
regarding the Electronic Asset inspection which began today.” Doc. No. 97-4 at 2.
“all of the Electronic Assets….” Doc. No. 97 at 1. “electronic media.” Id. at 2.
“electronic documents.” Id. at 5, 7; “electronic media” Doc. No. 44 at 1, Notice of
Motion for Expedited Discovery. “need to preserve electronic evidence….” Doc. No.
45 at 4. “Electronic records.” Id. at 19, 20. “electronic evidence.” Doc. No. 72 at 10;
“Ceglia must produce all of his hard-copy and electronic records supporting his
claims.” Id. at 11; “A forensic examination of all computers and other electronic
media in Ceglia’s (or his parents’) possession to identify documents or other
electronic evidence [that is] relevant….” Id. at 12; “Embedded in the electronic
data on Ceglia’s computer….” Doc. No. 99 at 4; “Ceglia must provide a certification
attesting that he has produced all potentially relevant computers and electronic
assets in his possession or under his control.” Id. at 13; “Directing Ceglia...to
certify...he has produced all the electronic assets called for by the Order.” Doc. No.
102-1 at 2, Declaration of Defense Counsel Southwell; “electronic communications.”
Doc. No. 107 at 6, Decision and Order of the Court; “electronic data” Doc. No. 110 at
4. “Ceglia...failed to disclose the existence of a...computer or the removable storage
devices.” Id. at 8-9; “Electronic assets” Doc. No. 111 at ¶2; “Plaintiff shall identify,
by name and location...the following...electronic media.” Doc. No. 117 at ¶2, 3
Order; “electronic assets” Doc. No. 121 at 39-40, 41, 44, 50, 58, 68, 102, 103, 119;
“electronic files, computers, electronic media and the like.” Id. at 40-41, statement
of the Court. “electronic records” Id. at 64, statement of the Court. “electronic
media in his possession….” Doc. No. 123 at 2; “electronic media in his
possession….” Id. at 3; “electronic media” Doc. No. 129 at 3; “Electronic Asset
Protection Protocol” Id. at 4-5; “electronic media” Doc. No. 137 at 3; “electronic data”
Doc. No. 155 at 5; “electronic media” Id. at 8; “electronically stored evidence” Id. at
12). This purposefully exhaustive list demonstrates that the universe of
information relevant to the issues in this case includes, all the terms above used in
both motions by Defendants, but also orders of this court.
The information contained on the five Zuckerberg computers and other
electronic media contained at Exhibit A at 19-21 are “electronic assets” and do
contain “electronic files,” “electronic data,” “electronic records” and “electronic
evidence.” The items on Exhibit A at 19-21 are relevant just as Defendants’ argued
and this court found Ceglia’s “electronic assets” have been relevant in fashioning
orders regarding the exhaustive searching of same for relevant and discoverable
ELECTRONIC COMMUNICATION EVIDENCE ON SUPPRESSED
Instant messaging is a form of electronic communication transmitted by
computers and in the past few years, via applications on smart phones like Apple’s
iPhone. In mid-2010, a selection of allegedly bonafide1 instant messages (IMs) were
published in the Silicon Alley Insider2 apparently authored by Mark Zuckerberg at
the time he was a student at Harvard. Exhibit C, The Business Insider article. The
New Yorker reported in September 2010 that Facebook executives and attorneys
reviewed these leaked IMs in a January 2006 meeting. Exhibit D, The New Yorker
article. These IMs were located on one or more computers Defendant Zuckerberg
used while a Harvard student.
The extent of Defendant Zuckerberg’s use of IMs and other electronic
communications using the computers in Exhibit A at 19-21 is detailed in filings in
As indicated, it is not known to Plaintiff whether these IMs are genuine. The “allegedly
bonafide” qualifier applies to each reference to "lMs." Likewise, Plaintiff cannot know if The New
Yorker article is accurate. Any reference to that article in this brief should be viewed with this
understanding in mind.
This publication is now known as the Business Insider. See N. Carlson, “At Last - The
Full Story Of How Facebook Was Founded,” Business Insider, Mar. 5, 2010,
(Last Accessed November 23,
the ConnectU case, namely Doc. No. 361-4 attached to this motion as Exhibit M.
“Facebook Defendants have recently located additional electronic devices that
we believe may have responsive information. We currently have reason to believe
the devices we have located are (a) Mark Zuckerberg’s original computer which was
used while Mr. Zuckerberg was at Harvard and (b) the first server owned and used
by Facebook.” Exhibit M at 1. Emphasis added.
The IMs indicate Defendant Zuckerberg was electronically communicating
with multiple people about the founding of Facebook during 2003-2004. Exhibits C
At no point in this litigation have the Defendants sought or the court ordered
that any limitation on the examination of computers used by the parties be
imposed. No such order should be imposed on Ceglia now in the wake of the
discovery of suppressed computers by Defendants and Defense Counsel. Defendant
Zuckerberg used the computers listed in Exhibit A at 19-21 for electronic
communication during 2003-2004 while a Harvard student. Exhibit N. Defendant
Zuckerberg used the computers and electronic media listed in Exhibit A at 19-21 to
host the programming code for Facebook in its early years. Id.
The Defendants and defense counsel also acknowledged the relevance of
these computers by their act of producing them in the ConnectU case for them to be
DISCOVERABILITY OF THE EVIDENCE
ON THE COMPUTERS SUPPRESSED BY DEFENDANTS
AND THEIR COUNSEL
The rules and case law regarding discoverability of relevant evidence easily
encompasses the electronic assets in the possession of Parmet in the ConnectU case.
The basic rule governing the permissible scope of discovery, Fed.R.Civ.P.
26(b), provides in pertinent part that “[p]arties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the
pending action .…”
The computers sought to be preserved in this motion are
“relevant to the subject matter involved.”
In 4 Moore's Federal Practice, ¶ 26.56 (2d ed. 1983), the following view is
expressed: “There are many examples of information that do not deal with the
merits of the claim that nevertheless have been held to be discoverable.... Matters
that affect the credibility of the deponent, or might be used in impeaching or crossexamining a witness at the trial may be inquired into.” Here again, the information
sought to be preserved by the order requested in this motion is information that is
not only connected to the merits of Ceglia’s claims, but also potentially affecting the
credibility of Zuckerberg or may be used in impeaching or cross-examining him at a
A similar view is expressed in 8 Wright & Miller, Federal Practice and
Procedure: Civil § 2015 (1970): “Discovery is commonly allowed in which the
discovering party seeks information with which to impeach witnesses for the
opposition. Inquiry is routinely allowed about criminal convictions of a party or
witness and similar matters that go to his credibility.” After quoting from Wharton
v. Lybrand, et al, 41 F.R.D. 177 (E.D.N.Y.1966), the authors state: “It is difficult to
believe that there is any such limitation. Information showing that a person having
knowledge of discoverable facts may not be worthy of belief is always relevant to the
subject matter of the action.” See also, Independent Productions Corp. v. Loew's,
Inc., 22 F.R.D. 266 (S.D.N. Y.1958); Broadway & 96th St. Realty Co. v. Loew's Inc.,
21 F.R.D. 347, 352 (S.D.N.Y. 1958); Kaiser-Frazer Corp. v. Otis & Co., 11 F.R.D. 50,
53 (S.D.N.Y.1951); Advisory Committee Notes to the Rules of Civil Procedure for
the United States District Courts reported in 12 Wright & Miller (1973) 429-433.
Even were Defendants to argue that there is no admissible information on
the computers listed in Exhibit A at 19-21, in a discovery proceeding, “it is not
ground for objection that the information sought will be inadmissible at the trial if
the information sought appears reasonably calculated to lead to the discovery of
admissible evidence.” Rule 26(b)(1) Fed.R.Civ.P.
When deciding if information is discoverable, the test is not whether that
information is admissible under the Federal Rules of Evidence. See generally 8
Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and
Procedure Civil § 2007 (2d Ed. 2006). Parties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any party. Fed. R.
Civ. P. 26(b)(1).
As part of his claims in this case, Mr. Ceglia has presented evidence that
computer programming code work done by Defendant Zuckerberg for the Street Fax
project he permitted Defendant Zuckerberg to use for Facebook. Mr. Ceglia has
presented evidence he exchanged electronic communications with Defendant
Zuckerberg during the 2003-2004 time period while Defendant Zuckerberg was a
Harvard student. Doc. No. 223, 224.
PRESERVATION DUTY AND ACKNOWLEDGED RECEIPT BY DEFENSE
COUNSEL OF LITIGATION HOLD LETTER INSUFFICIENT TO
As a general matter, it is beyond question that a party to civil litigation has
a duty to preserve relevant information, including ESI, when that party “has notice
that the evidence is relevant to litigation or ... should have known that the evidence
may be relevant to future litigation.” See Fujitsu Ltd. v. Fed. Express Corp., 247 F.
3d 423, 436 (2d Cir. 2001); see also Zubulake v. UBS Warburg LLC, 220 F.R.D. 212,
216-18 (S.D.N.Y. 2003); The Sedona Principles: Best Practices, Recommendations &
Principles for Addressing Electronic Document Production, Second Edition 11, 28
(The Sedona Conference Working Group Series, 2007), available at http://
www.thesedona conference.org/content/miscFiles/ TSC_ PRINCP_2nd_ed_607.pdf.
It is the responsibility of the parties to ensure that relevant ESI is preserved,
and when that duty is breached, a district court may exercise its authority to
impose appropriate discovery sanctions. See Fed.R.Civ.P. 37(b), (e)LQ; The Sedona
Principles, supra, at 70 (noting that sanctions should be considered only if the court
finds a clear duty to preserve, a culpable failure to preserve and produce relevant
ESI, and a reasonable probability of material prejudice to the adverse party).
As the indisputable facts of this matter reveal, the Defendants and the Orrick
Law Firm, at the very least, completely ignored their duty to “preserve relevant
information, including ESI.” The Defendants and the Orrick Law Firm, at the very
least, went further than merely ignoring a duty and actively sought to solicit the
destruction of relevant information. Therefore, a restraining order is needed to
preserve this evidence as the Defendants and defense counsel have shown their
willingness to engage in fraud and evidence destruction in contravention of what all
ethical and reasonable lawyers regard as a duty to preserve evidence that needs no
explanation, typically, by a court.
LOCAL RULE REGARDING TEMPORARY RESTRAINING ORDERS
“A party seeking an ex parte TRO must comply with the
requirements of Federal Rule of Civil Procedure 65(b)(1) and (2). An application for
an ex parte TRO also shall include:
(A) a copy of the complaint, if the case has been recently filed;
(B) the motion for a TRO;
(C) a memorandum of law in support of the TRO, citing legal authority
showing that the party is entitled to the relief requested; and
(D) a proposed order granting the TRO, in accordance with Federal Rule
of Civil Procedure 65(b)(2) and (d)(1).” L.R.Civ.P. 65(A)(1). The application must
also include a “motion for expedited hearing pursuant to L.R. Civ.P. 7(d)(1).
This case was filed more than a year ago, therefore, no copy of the complaint
is necessary to be filed by rule. Along with this motion is a copy of a proposed order
for the court’s consideration in compliance with the rule above.
FEDERAL RULE OF CIVIL PROCEDURE REGARDING TEMPORARY
TROs are “designed to preserve the status quo until there is an opportunity
to hold a hearing on the application for a preliminary injunction.” 11A Charles Alan
Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: Civil
§ 2951, at 253 (2d. ed. 1995).
Defendants and defense counsel have committed fraud in at least three main
ways. Each of these acts, alone, is sufficient for this court to impose a range of
financial and litigation-related sanctions, if not the most severe sanction - default
As discussed above, these electronic assets are discoverable and relevant to
claims in this matter.
FIRST FRAUD - FAILURE TO DISCLOSE THE EXISTENCE OF
RELEVANT ELECTRONIC ASSETS
As noted above, Defendants and at least defense counsel from the Orrick Law
Firm were aware of the existence of all the electronic assets in Exhibit A at 19-21.
They failed to disclose the existence of these assets to Plaintiff, this court or even, it
appears, co-counsel from Gibson Dunn if Mr. Snyder’s disclaiming of knowledge of
these electronic assets is to be believed. That failure to disclose relevant and
discoverable evidence is a fraud on the court and a fraud on the Plaintiff.
SECOND FRAUD - DEFENDANTS MISLEADING ARGUMENTS RELIANT
ON FALSE ASSERTION OF COMPREHENSIVELY SEARCHING
ZUCKERBERG’S ELECTRONIC ASSETS
Defendants’ computer forensics experts have outlined in declarations the
comprehensive nature of a proper search for electronic evidence:
[E]vidence relating to authenticity can be extracted from many locations
on any computers on which the documents in question were created,
saved, viewed or modified. These locations include the computer system,
application and security logs, the unallocated space of the computers from
which deleted files or file fragments may be recovered, the portion of the
hard drives that stores the dates and times that files were created, last
accessed, and modified; and the files that show what documents were
recently accessed. Declaration of Computer Forensic Expert McGowan, Doc. No.
51 at ¶4.
Defendants have argued in this case on multiple occasions that their
computer forensic experts have comprehensively searched Defendant Zuckerberg’s
email and other electronic communications records. Doc. No. 47, Declaration of
Defendants’ Computer Forensics Expert, Bryan Rose. Doc. No. 45 at ¶2.
Defense counsel Snyder, in filed pleadings in this case, made assurances to
the court about the full search of Mr. Zuckerberg’s electronic assets for email
The process through which Zuckerberg’s Harvard emails were
obtained and reviewed is set forth in the attached declaration of Bryan
Rose, a former Assistant United States Attorney. As Mr. Rose explains, the
highly-regarded digital forensics firm Stroz Friedberg obtained a complete
and accurate copy of the entire contents of Zuckerberg’s Harvard
University email account, including both sent and received mail, as the
account existed in October 2010. Rose Decl., ¶ 5. It also obtained a copy of
Zuckerberg’s account as it existed in April 2011. Id., ¶ 4. Stroz Friedberg
ran searches on all emails in the account using search terms containing
the words and phrases taken from the purported emails excerpted in
Ceglia’s Amended Complaint. Id., ¶ 7. Based on these searches, Mr. Rose
determined that the purported emails were not in Zuckerberg’s email
account. Id. Doc. No. 45 at p. 10, ¶2. Emphasis added.
Nowhere in these filings or arguments made by defense counsel in court was
it revealed that at least five other computers used by Zuckerberg for electronic
communications, and undoubtedly to connect to the Harvard email server and
exchange emails, were not being searched. And, yet, defense counsel’s arguments
comparing Zuckerberg’s email record and Ceglia’s persisted with protestations of
fraud, perhaps a reaction formation to the actual fraud that Defendants and
Defense Counsel were actively committing.
BRYAN ROSE FROM STROZ FRIEDBERG OUTLINES SEARCHES OF
ZUCKERBERG’S ELECTRONIC COMMUNICATIONS
Bryan Rose, an expert from Stroz Friedberg, filed a declaration supporting
expedited discovery. Doc. No. 47. Nowhere in that declaration does Mr. Rose
acknowledge the existence of five additional Zuckerberg computers, used for
electronic communications and perhaps other activities by Defendant Zuckerberg in
the 2003-2004 time frame, that he has not searched for electronic communications.
Either Mr. Rose was aware of those computers and also engaged in a fraud on the
court, or he was not told of the existence of those computers by Defendants or
Defense Counsel and he was a pawn in their fraud on the court. There is no third
Mr. Rose’s declaration seeks to impress the court that he has
comprehensively reviewed Defendant Zuckerberg’s email record and cannot locate
any of the Ceglia emails in that record. His declaration is meaningless now given
the knowledge that five additional computers, used during the 2003-2004 time
frame by Defendant Zuckerberg have not been searched. Mr. Rose cannot offer a
declaration in this case that no basis exists for him, as a computer forensics expert,
to search those five computers before providing a competent opinion regarding the
existence of Ceglia’s emails somewhere in Defendant Zuckerberg’s email record.
DEFENDANTS CLAIM FRAUD
WHILE SUPPRESSING COMPUTER EVIDENCE
The Defendants have been driven to dismiss this case on a fraud claim. That
claim has focused, in part, on claims that Ceglia’s email evidence is fraudulent.
Defense Counsel Oren Snyder has repeatedly claimed Ceglia’s emails are not
Doc. No. 94 at 5.
“The emails are outright
fabrications.” Id. at 15. “[S]upposed emails.” Id. at 16. “[S]o called emails exist.”
Id. at 17. “[F]ake emails.” Id. at 19. “[T]he emails are fake.” Id. at 72. [B]ogus
emails.” Id. at 108. “Fraudulent emails.” Id. at 111. “[T]hese emails are bogus.”
Id. at 115.
Id. at 135.
Id. at 127 and 135.
“[T]hose emails were
“[A]lleged emails in the complaint, in addition to be
fraudulent….” Id. at 136. “[B]ogus emails.” Id. at 138. “[H]is fraud on the court
based on these emails….” Id. at 149. “[H]is so-called emails.” August 17, 2011
Transcript at 42. “[S]o called emails.” Id. at 44, 63. “[M]ade-up emails.” Id. at 49.
“[P]urported emails.” Id at 63. “[T]he so-called emails.” Id. at 108, 109.
Defendants and defense counsel engaged in fraud by making arguments
reliant on the comparison of Ceglia’s emails to Zuckerberg’s email record while
knowing they had not searched the entirety of Zuckberg’s electronic assets.
Defendants have no excuse of lack of knowledge for their failure to disclose
these Electronic Assets. Both Defendants knew these computers in Exhibit A were
copied by a forensic expert in ConnectU as they are both also parties to that case.
Defense counsel, especially from the Orrick law firm, equally has no basis to deny
knowing of the existence of these Electronic Assets. This undeniable reality omits
of any explanation that is easily distinguishable from a fraud on the court.
Defendants clearly represented to this court that its experts at Stroz
Friedberg thoroughly searched Zuckerberg’s entire email record.
Doc. No. 47.
Defendants and their counsel also clearly represented that their search yielded
nothing confirming Ceglia’s claim. All the while, Defendants and their counsel were
aware of five other potential sources of emails, instant messages and other
electronic communication sitting in the offices of Parmet and have utterly failed to
disclose this relevant evidence while simultaneously urging parties in possession of
it to destroy it.
With an immediate restraining order imposed on Parmet, Defendants and
Defendants’ counsel to not destroy or otherwise erase any of the computers identified
in Exhibit A, the status quo is maintained and no harm comes to either party in this
case. Defendants and defense counsel have suppressed this information for more
than a year.
Plaintiff reasonably fears either a deadline being reached in the
ConnectU case triggering destruction of the computer evidence in Exhibit A.
These acts of defiance of Defendants’ duty to preserve, and that of Defense
Counsel, must have been embarked upon related to the computers in Exhibit A for a
reason. It is no leap of logic to conclude that Defendants and defense counsel are
aware that evidence on those computers is unhelpful to their defense in this case. If
that were not the case, Defendants and defense counsel would have disclosed the
existence of this evidence to the court and directed Stroz Friedberg to search it
when addressing the issues related to Ceglia’s email evidence. Instead, Defendants
and their counsel have hidden this evidence, obstructed the very expedited
discovery they sought so vigorously and attempted to persuade this court a full
examination of Defendant Zuckerberg’s complete email record has occurred.
These are grave issues to say the least when discoverable information is
withheld in a federal case.
However, the granting of this temporary restraining
order lacks any aspect which harms Defendants. Without an immediate Temporary
Restraining Order, this evidence could be erased by someone believing in good faith
they are following the court’s order in ConnectU or acting in bad faith. Either way,
if the evidence is erased, what’s done is done.
The requested order merely insures this now previously suppressed evidence
is not destroyed until this court can schedule a full hearing on the matter and
entertain whatever explanation Defendants or their counsel have for their failure to
disclose this information to Plaintiff or the court before its fortunate discovery.
THIRD FRAUD - DEFENDANTS AND DEFENSE COUNSEL ACTIVELY
SOUGHT DESTRUCTION OF EVIDENCE RELEVANT AND
DISCOVERABLE IN THIS CASE
Defendants and defense counsel never disclosed the Electronic Assets in
Exhibit A at 19-21 to the Plaintiff or this Court.
They both made fraudulent
arguments reliant on that lack of knowledge by Plaintiff and this Court. Finally,
Defendants and Defense Counsel it actively sought to insure the destruction of this
Defendants and their counsel, namely the Orrick Law Firm, actively sought,
urged, solicited and requested confirmation of the destruction of this relevant and
discoverable evidence while this case was pending.
At a phone conference with Magistrate Judge Foschio regarding this matter
held on November 23, 2011, Defense counsel Oren Snyder disclaimed any
knowledge of the existence of this electronic evidence source or any of the attempts
by the Orrick law firm to hasten its destruction pursuant to an order in the
ConnectU case. He did not deny his Defendants knowledge of the existence of this
relevant and discoverable evidence nor his Defendants efforts to have this evidence
destroyed, through counsel.
STEPS TAKEN TO MEET, CONFER AND AVOID FILING OF TRO MOTION
Less than an hour after the phone conference with the court and Defendants’
counsel, Plaintiff’s counsel sent to the Orrick Law Firm, Oren Snyder and Alex
Southwell an email with attachments providing all necessary information for
Defense Counsel to take steps to preserve the evidence regarding this motion.
Exhibits H and I. A nearly identical email was sent to Attorney Monte Cooper with
the Orrick Law firm. Exhibit I. Mr. Cooper is the lawyer from Orrick actively
seeking confirmation and urging individuals to destroy the evidence in Exhibit A at
19-21. I followed up that email with one that asked for any attorney on behalf of
Defendants to provide assurance to Plaintiff by noon on Friday, November 25, 2011
of the steps taken to preserve the evidence at issue. Exhibit J. An email was then
sent to Parmet seeking to inform them of the nature of the evidence in their
possession and inquire whether it has yet been “erased” or “scrubbed.” Exhibit K.
At 10:13pm on November 23, 2011, another email was sent to all Defense Counsel
attempting to resolve the issue and preserve the evidence and clearly indicating
that there would be no need for the filing of the TRO motion if Defense Counsel
merely took the steps necessary to preserve the evidence. Exhibit L. No responses
of any kind were received from any Defense Counsel to any of these emails.
Plaintiff is seeking a Temporary Restraining Order prohibiting all parties in
possession of all items listed in Exhibit A at 19-21, specifically, Defendants in this
case and Parmet and Associates, 9920 Potomac Manors Drive, Potomac Maryland,
(Parmet) (See Exhibit A at 5) from destroying or otherwise erasing any of the data
on any of the electronic storage devices in Exhibit A, 19-21 and any other unlisted
devices in their possession, custody or control until further order of this court.
Plaintiff is also seeking an order directly Defendants and Defense Counsel to
provide declarations to this court outlining the specific steps taken to preserve this
Plaintiff is also seeking an order directing Defendants and Defense Counsel
to communicate with Parmet to direct them to refrain from destroying any of the
evidence in their possession in the ConnectU case, including that in Exhibit A at
As part of this request, because of the stunning evidence of Defendants and
at least the Orrick law firm failing to disclose while simultaneously working to have
destroyed this electronic evidence, Plaintiff requests that Defendants and their
counsel be compelled to file declarations detailing whether there is any other
undisclosed electronic evidence and, if so, any and all details about that evidence.
According to the order from the ConnectU case, Exhibit A, Defendants’
counsel, the Orrick Law Firm, also have a copy of the items listed in Exhibit A at
For the foregoing reasons, Mr. Ceglia respectfully requests the following
1. Temporarily restraining Defendants and/or their attorneys and agents from
destroying any evidence relevant to this matter: to wit: computers currently in
the possession of Parmet and Associates of Potomac, Maryland; and
2. Requiring All defense counsel to submit declarations regarding all necessary
steps they have taken or will take to preserve this evidence until further order of
this court; and
3. Requiring all defense counsel to submit declarations that detail if they were
aware of the existence of the forensic copies of these computers created by Parmet
and Associates, when they first became aware of that fact and the justification for
failing to disclose that fact to the court or Plaintiff in this matter; and
4. For sanctions against Defendants and Defense counsel including all attorneys
fees for all work by all attorneys throughout the expedited discovery, all expert
witness fees and costs incurred throughout the expedited discovery, all costs
incurred by Plaintiff throughout the expedited discovery; andA modification of
the court’s prior order granting expedited discovery whereby expedited discovery
is terminated and all meetings and other matters initiating regular case
discovery are undertaken.
Finally, lead counsel for Plaintiff has a sentencing in Federal District Court
for the Southern District of Ohio on Tuesday, November 29, 2011 and a mandatory
hearing he must attend in a matter on Friday, December 2, 2011 in Ohio as well
and therefore, would be unavailable for a hearing scheduled for either of those days.
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
18123 Sloane Avenue
Lakewood, Ohio 44107