Ceglia v. Zuckerberg et al
REPLY to Response to Motion re 198 MOTION for Sanctions NOTICE OF MOTION FOR SANCTIONS FOR SPOLIATION OF EMAIL BY DEFENDANT ZUCKERBERG filed by Paul D. Ceglia. (Attachments: # 1 Certificate of Service)(Boland, Dean)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
Civil Action No. : 1:10-cv-00569-RJA
REPLY TO RESPONSE TO
MOTION FOR SANCTIONS FOR
SPOLIATION OF EMAILS
MARK ELLIOT ZUCKERBERG, Individually, and
Defendants and Mr. Snyder continue their obfuscation with their response to
this motion. Defendants and Mr. Snyder argue in bad faith in Doc. No. 237 that two
emails that are different, are the same.
Doc. No. 237 at 5-6.
Just like Mr.
Gianadda, Stroz Friedberg sinned against Defendants and Mr. Snyder in their Doc.
No. 47 declaration by telling the truth. “Emails have been deleted” is not something
that Defendants can accept. Id. Their response is to spring into action and obtain
an altered declaration from Stroz attempting to explain away the “bad” truth of
their expert’s first declaration. Doc. No. 73. The court has seen this movie before.
It is the same approach used to pressure Mr. Gianadda to alter his declaration
coloring it favorably toward Defendants.
Stroz first states in Doc. No. 47 that when examining the 2011 Zuckerberg
Harvard email record, emails are missing compared to a 2010 copy of Zuckerberg’s
Harvard email record. Once Defense counsel alerts them to the harm such truth
does to their case, Stroz alters their declaration to say that “no email from the
October 2010 [version] has been deleted or lost.” Doc. No. 73 at ¶5-6.
Just like with Gianadda, Stroz responds to the Defendants’ needs by altering
an original declaration which was unfavorable to Defendants, Doc. No. 47, with a
new version that, not surprisingly, favors Defendants. Doc. No. 73.
Mr. Rose did not, in fact, confirm that “all 17 [emails] are present in the April
2011 version of the account.” Doc. No. 237 at ¶5. Mr. Rose confirms that there are
emails in the 2011 version that have “minor formatting differences” and “technical
issues. For example, some of the emails had extra white space in the Subject line.”
FIRST SMOKE, THEN MIRRORS, THEN NOTHING
Lost in the assurances of Defense counsel is any assurance at all from Stroz.
They provide no declaration explaining the undefined terms of “minor formatting
differences” or “technical issues.” These are merely euphemisms for “we don’t know
why the emails are altered or who did it.” Stroz does not declare the emails are
identical, because, of course, they are not. They merely try to excuse the obvious
electronic evidence differences with the above undefined terms and assurances that
no emails were “lost.”
Now with the hindsight of Defendant Zuckerberg having suppressed evidence
in this case, authorized his lawyers to make false arguments in reliance on that
suppressed evidence and having his lawyers actively attempt to destroy evidence,
there is every reason to believe the alteration and deletion of his emails was his
Stroz’s inadequate explanation of why emails were missing is self-serving
and in service of Defendants’ and their counsel’s ongoing fraud. Stroz is also the
firm that mislead this court into a comprehensive analysis needed for Ceglia’s email
record and a superficial analysis for Zuckerberg’s email record as if credible
computer forensics experts regarded these two treatments as equivalent.
What is the basis for Stroz to say that emails with different characters or
white space are the same?
How did those “minor formatting differences” occur?
What are “minor formatting differences”?
No such term defined in the Sedona
Principles that this court’s rules rely on. Were the differences created manually by
someone with access to the account?
Did someone at Harvard cause these
differences? We still do not know precisely how many emails are different now and
how they are different? When did they become different, i.e. date and time? How
often do these types of differences occur in email investigations? Stroz’s declaration
that “No email from the October 2010 [version] has been deleted or lost” is now an
obvious fraud in which they participated or were unwitting dupes. We know now
that Stroz cannot make that representation because they have not searched all
relevant electronic assets, for example, the computers Defendants and Snyder
suppressed throughout this case and are subject to upcoming fraud sanctions from
The Sedona Glossary of Terms related to Electronically Stored Information
defines what it means for data to be verified.
“Data Verification: Assessment of data to ensure it has not been modified.
The most common method of verification is hash coding by some method such as
MD5.” Sedona Glossary of Terms at 13.
The “de-duplication” function that Stroz used relies on the hash value of a file
to find duplicates.
File Level Binary Comparison: Method of de-duplication using the
digital fingerprint (hash) of a file. File Level Binary comparison ignores
metadata, and can determine that “SHOPPING LIST.DOC” and “TOP
SECRET.DOC” are actually the same document. Id. at 21.
The creation of hash values of files, used to find duplicates and remove them
as Stroz did here, is defined as follows:
Hash Coding: To create a digital fingerprint that represents the
binary content of a file unique to every electronically-generated
document; assists in subsequently ensuring that data has not been
modified. Id. at 25.
A DIFFERENT EMAIL IS NOT THE SAME EMAIL
Stroz Friedberg is participating with Defendants and their counsel in
misleading this court.
They are attempting to lead this court to believe that no
emails are missing from Defendant Zuckerberg’s 2011 email record that were once
present in his 2010 email record. Doc. No. 73 at ¶6. This claim is false and Stroz
Friedberg knows it to be false.
Even using de-duplication functions, a file
containing “extra white space” is not the same as an apparently similar file without
such white space. Declaration of Jerry Grant at ¶8-9.
The field of computer forensics does not have terms comparing electronic files
as “mostly the same” or “nearly identical.” Id. at ¶10. Either a file is identical to
another file or it is not.
If it is not identical, it is not the same file.
Defendants want this court to believe that the “missing” emails have re-appeared as
nearly identical emails, except for “minor formatting differences” and “technical
This is akin to describing elephants as identical to giraffes except for
“minor neck issues” and “technical issues with their noses.” It is garbage data in
and now garbage data out.
A credible computer expert, when confronted with what should be identical
files that are now different, would have posed and attempted to answer a variety of
critical questions: What has changed in the now altered file? Id. at ¶11a. When
did this change occur? Id. at ¶11b. What caused the change to occur? Id. at ¶11c.
Is there a way to test the hypothesis of how the change occurred and re-create it?
Id. at ¶11d. Who has had access to the original file that is now altered? Id. at ¶11e.
The potential answer behind the curtain here is that Stroz’s own mistake inserted
the “minor formatting differences” and “technical issues” into the data in this case.
Given the sloppy work of Defendants‘ other experts, it would be par for the course to
have Defendants’ computer experts contaminate evidence.
Using undefined, unscientific terms such as “minor formatting differences”
and “technical issues” to gloss over different files identifying them as the same is
completely improper. Id at ¶12. As noted above, all electronic files can have their
hash values calculated.
That value uniquely identifies that file allowing for a
comparison with another file and a determination that the other file is identical (i.e.
the hash values match) or is not (i.e. the hash values differ). Stroz and Defendants
here attempt to persuade this court that emails from Defendant Zuckerberg’s email
record at Harvard that do not have matching hash values (See Id. at ¶14) are still
It is a fraudulent argument that seeks to divert the court’s attention
from obviously tampered, incomplete, superficially analyzed data being used up to
now in an attempt to dismiss Plaintiff’s claims.
For the foregoing reasons, Mr. Ceglia respectfully requests this court sanction
Defendants for spoliation of the email evidence from the Harvard server.
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
18123 Sloane Avenue
Lakewood, Ohio 44107