Ceglia v. Zuckerberg et al
REPLY to Response to Motion re 228 MOTION Order Prohibiting Defendants' Reliance on Inadmissible Evidence in Any Dispositive Motion NOTICE OF MOTION for Order Prohibiting Defendants Reliance on Inadmissible Evidence in Any Dispositive Motion filed by Paul D. Ceglia. (Attachments: # 1 Certificate of Service, # 2 Exhibit A)(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
REPLY TO RESPONSE TO OUR
PROHIBITION ON RELIANCE
ON ALLEGED KOLE EMAIL AND
“Based on their examination of Ceglia’s computers, Defendants also
discovered that Ceglia emailed the authentic contract on March 3, 2004 to Jim
Doc. No. 237 at 7.
Defendants’ claim here is misleading.
claims to have sent the email at issue. No witness claims to have received the email
at issue. The email itself claims it was sent by Vera Ceglia, Mr. Ceglia’s mother.
The email text refers to sending “Page 1” of a document when it is sending Page 2 of
what Defendants purport is an authentic document. See Exhibit A.
Defendants offer no evidence satisfactory to the Rules of Evidence to
authenticate either the unauthenticated email itself or the unauthenticated digital
“Ceglia now says that the authentic contact (sic) and his emails transmitting
the contract are actually forgeries that were created by Mark Zuckerberg in 2004.”
Doc. No. 237 at 7. Reviewing Plaintiff’s motion on this point, he makes no such
claim. He does, however, note that other persons, including Mr. Zuckerberg, had
access to all the necessary credentials to send this unauthenticated email. Nowhere
does Plaintiff claim that this email was sent at all or sent in any particular year.
Defendants do not provide any declaration stating when this unauthenticated email
was allegedly sent or received.
Defendants offer no case law or statutory authority for the proposition that
Mr. Ceglia’s initial claim of privilege on an unauthenticated document somehow,
magically, converts that document to authentic.
The Rules of Evidence on
authenticating photographs and digital images do not contain any such extension
for initial claims of privilege equalling authentication. It is an argument without
support, expert or legal.
Defendants also claim, without legal support, that “attempts to conceal” the
emails (of course, unsupported by any evidence) and “frivolous assertions of
privilege” (of course, unsupported by any finding by this court or admission by
Plaintiff to be frivolous) also establish authenticity.
The Defense then brands the notion that Defendant Zuckerberg, an
acknowledged email account hacker and document forger, would hack an email
account and forge a document, as “Ceglia’s crazy theory.” They urge this court to
replace that “crazy theory” with their theory.
The Defendants’ theory is that
Plaintiff, who had multiple email accounts he consistently used to correspond with
attorney Jim Kole, on one occasion, and one occasion only, emailed his lawyer
attaching a contract using his mother’s email account. And, he used that account
despite not having any access to the username or password to the account disabling
him from learning about his lawyer’s reply to that email unless his mother
monitored that account and informed him of a reply.
Doc. No. 230 at ¶14.
Defendants offer no evidence contradicting Plaintiff’s evidence on this point. They
offer no evidence of a pattern of Plaintiff operating his professional affairs in this
WHAT’S GONE FOR ZUCKERBERG NOW RE-APPEARS
“[Defendant] Zuckerberg doesn’t have a copy of the contract….” Doc. No. 94
at 52. The only place Defendants claim to have “found” the “authentic” contract is
in digital image format attached to an unauthenticated email.
It is certainly
convenient that Defendant Zuckerberg discarded his version of this supposed real
contract eliminating any opportunity for comparison.
Despite these facts, Defendant Zuckerberg declines to offer a declaration that
this unauthenticated digital image is authentic at all waiving any future argument
to the contrary. Moreover, as is evident from the email exchanges thus far provided
to the court, Defendant Zuckerberg at the time he discarded the supposed real
contract knew that litigation was anticipated as he and Plaintiff were already
squabbling over payment and other features of the Facebook Contract.
To say that Defendant Zuckerberg had no motivation or foresight to attempt
to alter his contract with Plaintiff is frivolous.
By the 2003-2004 timeframe,
Zuckerberg was actively defrauding early stage investors and individuals from
whom he stole key ideas regarding Facebook.
See ConnectU, et al, v. Facebook,
Mark Zuckerberg, et al, 1:07-cv-10593.
Only Defendants claim these documents originated on Ceglia’s computer.
And, they do so through computer forensics experts at Stroz Friedberg that this
court knows operate less than objectively in this case. The integrity of that search
and so-called “find” on Plaintiff’s computer is doubtful based upon Stroz’s record of
declaring emails deleted and then magically “finding” them, as well as their
unbalanced methodology searching for data depending on whether it helps
Defendants or not.
Until Plaintiff’s own experts have a full and fair opportunity to complete all
the tasks that Stroz claims to have completed thus far, this court will not have a full
and accurate picture of the electronic evidence.
For the foregoing reasons, Mr. Ceglia respectfully requests this court bar
Defendants from referencing the unauthenticated email and unauthenticated
digital image attachment to that email in any dispositive motion filed during or at
the end of Expedited Discovery.
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
18123 Sloane Avenue
Lakewood, Ohio 44107