Ceglia v. Zuckerberg et al

Filing 332

CONTINUATION OF EXHIBITS by Facebook, Inc., Mark Elliot Zuckerberg. to 324 Declaration, Exhibits O - W to March 26, 2012 Southwell Declaration filed by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin)

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EXHIBIT O EXHIBIT P UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK -------------------------------------- X PAUL D. CEGLIA, an individual, : Plaintiff, : -against- : MARK ELLIOTT ZUCKERBERG, an individual, and FACEBOOK, INC., formerly known as TheFaceBook, Inc., a Delaware corporation, CIVIL ACTION NO. 10-569(RJA) : RESPONSES TO THE INTERROGATORIES OF VALERY N. AGINSKY, PH.D. : : Defendants. : -------------------------------------- X I, Valery N. Aginsky, Ph.D., state as follows: RESPONSES TO THE INTERROGATORIES INTERROGATORY NO. 1: Identify the date on which YOU were first contacted by PLAINTIFF regarding YOUR potential retention as an expert in this matter and the date on which YOU were retained by PLAINTIFF as an expert in this matter. Answer: I was first contacted by PLAINTIFF on November 24, 2010 and I was retained as an expert in this matter on January 13, 2011. INTERROGATORY NO. 2: State whether it is true that as of October 24, 2011, you were "unable to respond" to PLAINTIFF with regard to this matter. If so, describe the circumstances under which you were unable to respond.   1  Answer: It is true. I had notified PLAINTIFF that I would resume providing professional services with regard to this matter only after my invoice, dated August 31, 2011 (the outstanding balance for the time I spent working on this case from January 13, 2011 to August 13, 2011), is paid. As of October 24, 2011, I had not received the payment on the invoice. INTERROGATORY NO. 3: Identify each QUESTIONED DOCUMENT YOU EXAMINED. For each QUESTIONED DOCUMENT, identify the date or dates of all occasions when YOU EXAMINED the QUESTIONED DOCUMENT. For each occasion on which YOU EXAMINED each QUESTIONED DOCUMENT, describe separately for each occasion and each QUESTIONED DOCUMENT: (A) the person or persons who provided YOU with each QUESTIONED DOCUMENT in connection with this matter; Answer: Mr. Paul Argentieri. (B) the approximate time on each date that you received each QUESTIONED DOCUMENT; Answer: Approximately 9 a.m. on January 13, 2011. (C) the manner in which YOU received the purported original of each QUESTIONED DOCUMENT (e.g., Federal Express, hand delivery);   2  Answer: Hand delivery. (D) the location where YOU EXAMINED each QUESTIONED DOCUMENT in connection with this matter, including the specific address and description of the location; Answer: The examination was conducted at my laboratory (AGINSKY FORENSIC DOCUMENT DATING LABORATORY, INC.) located at 6280 Heathfield Drive, East Lansing, Michigan 48823. (E) the manner in which each QUESTIONED DOCUMENT was packaged or stored at the time of YOUR receipt and EXAMINATION of that document; Answer: The document (a two-page “Work For Hire” Contract between Paul Ceglia, StreetFax LLC and Mark Zuckerberg dated April 28, 2003) was handed to me by Mr. Argentieri at approximately 9 a.m. on January 13, 2011. (F) the manner in which each QUESTIONED DOCUMENT was packaged or stored after YOUR EXAMINATION; Answer: After my examination, I handed the document back to Mr. Argentieri. (G) the manner in which each QUESTIONED DOCUMENT was transferred after YOUR EXAMINATION; Answer: After my examination, I handed the document back to Mr. Argentieri.   3  (H) the person to whom YOU transferred each QUESTIONED DOCUMENT after YOUR EXAMINATION; and Answer: Mr. Argentieri. (I) the date and time on which YOU transferred possession of each QUESTIONED DOCUMENT. Answer: Approximately 3 p.m. on January 13, 2011. INTERROGATORY NO. 4: For each EXAMINATION of each QUESTIONED DOCUMENT YOU conducted: (A) Identify all scans, photographs, and/or other images YOU took of any QUESTIONED DOCUMENT or any portion thereof; Answer: I have scanned the fronts and backs of both pages of the document, as well as a portion of page 1 bearing a handwritten notation and two initials and a portion of page 2 bearing two signatures and dates. Then I took thirteen (13) images of portions of the document using a video spectral comparator. Also, I took seven (7) images of portions of the document using a digital camera, twenty four (24) microphotographs of portions of the document using a digital microscope, and eleven (11) microphotographs of portions of the document using another digital microscope. (B) Describe the circumstances and manner in which YOU took each scan, photograph, and/or other image of a QUESTIONED DOCUMENT or any portion thereof, including the date and time it was taken and the equipment used;   4  Answer: The document was scanned using a Canon CanoScan LiDE200 scanner (with an Adobe Photoshop Elements 6 software) during time period of 9:55 a.m. - 10:14 a.m. on January 13, 2011. The thirteen (13) images of portions of the document were taken during a time period of 11:12 a.m. - 11:38 a.m. on January 13, 2011 using a Foster & Freeman VSC-4c video spectral comparator. The seven (7) images of portions of the document were taken during a time period of 11:41 a.m. - 11:46 a.m. on January 13, 2011 using a Canon digital camera. The twenty four (24) microphotographs of portions of the document were taken during a time period of 11:55 a.m. - 12:29 p.m. on January 13, 2011 using a Zarbeco MiScope-2MP digital microscope. The eleven (11) microphotographs of portions of the document were taken during a time period of 1:00 p.m. - 1:51 p.m. on January 13, 2011 using a Dino-Lite digital microscope. The circumstances and manner in which I took each scan and photograph were a) typical for a non-destructive examination of documents that I have been conducting routinely for about 28 years and b) in accordance with the recommendations outlined in the American Society for Testing and Materials (ASTM) International Standard Guide E1422-05.1 (C) Describe whether YOU exposed the QUESTIONED DOCUMENT to ultra                                                         1 ASTM Standard Guide E1422-05, “Standard Guide for Test Methods for Forensic Writing Ink Comparison.” Published January 2006. Originally approved in 1991. Last previous edition approved in 2001 as E 1422-01.   5  violet, infrared, or other light sources, and, if so, describe the type and model of equipment used, the strength of source used, and length of exposure to each source; Answer: I examined the optical responses of the paper, toner and ink under incident shortwave (254 nm) and longwave (365 nm) UV illumination using a Chromato-Vue Cabinet CC-10 with a UVGL-58 254/365nm UV lamp (115V, 0.16 amps). The total exposure of the document to the UV light (254 nm and 365 nm) was about one minute. Also, I examined the infrared (IR) absorption and IR luminescence (IRL) characteristics of the paper, toner and ink using the VSC-4c with a flood light filament lamp (12V, 10W) and a quartz halogen filament lamp (a 12V/100W high intensity spot lamp with integral reflector). Besides, the fluorescence of the paper was examined using both incident and transmitted longwave (365 nm) UV light (4W and 8W low pressure mercury Vapor Discharge Tubes). The total exposure of the document to the UV, visible and infrared light when using the VSC-4c was about 27 minutes. (D) Describe whether YOU applied any chemical to the QUESTIONED DOCUMENT and, if so, describe the application, including what YOU applied, how, and for how long; and Answer: I have not applied any chemical to the questioned document. (E) Describe whether YOU applied any heat to the QUESTIONED DOCUMENT and, if so, describe the application, including what YOU applied, how, and for how long. Answer: Except for heat generated by the lamps when the document was being examined   6  using the UVGL-58 254/365nm UV lamp and the VSC-4c, I have not applied any heat to the questioned document. INTERROGATORY NO. 5: State whether the image attached hereto as Exhibit A accurately represents the condition of the purported original of the purported "Work for Hire" Contract provided by PLAINTIFF throughout YOUR EXAMINATION(S) of that QUESTIONED DOCUMENT. If the condition varied throughout YOUR EXAMINATION(S), describe completely how the condition varied. Answer: The image (your Exhibit A) accurately represents the condition of the document (the two-page “Work For Hire” Contract between Paul Ceglia, StreetFax LLC and Mark Zuckerberg dated April 28, 2003) that I examined on January 13, 2011. The condition of the document did not vary through my examination of the document on January 13, 2011. INTERROGATORY NO. 6: State whether the ink in each location on the CONTRACT that YOU EXAMINED, including the interlineation, initials, signatures, and dates, appeared black when YOU observed it during YOUR EXAMINATION(S) of that QUESTIONED DOCUMENT. If the appearance of the ink varied throughout YOUR EXAMINATION(S), describe completely how the appearance varied. Answer: The ballpoint ink used to produce the interlineation, initials, signatures, and dates, appeared black when I observed it during my examination of the document on January 13, 2011. The appearance of the ink did not vary through my examination of the   7  document. INTERROGATORY NO. 7: State whether the image attached hereto as Exhibit B reflects the condition of the purported "Work for Hire" Contract at any point during YOUR EXAMINATION(S) in this matter, and if so, when. Answer: The image (your Exhibit B) does not reflect the condition of the document (the twopage “Work For Hire” Contract between Paul Ceglia, StreetFax LLC and Mark Zuckerberg dated April 28, 2003) that I examined on January 13, 2011. INTERROGATORY NO. 8: State whether YOU ever observed yellowed, browned, or faded ink on any portion of the purported original of the "Work for Hire" Contract or any QUESTIONED DOCUMENT provided by PLAINTIFF. Answer: I did not observe yellowed, browned, or faded ink on any portion of the document (the two-page “Work For Hire” Contract between Paul Ceglia, StreetFax LLC and Mark Zuckerberg dated April 28, 2003) that I examined on January 13, 2011. Except for this document, no other documents have been provided to me by PLAINTIFF. INTERROGATORY NO. 9: Confirm that YOU have produced directly to counsel for Defendants all electronic versions or purported versions of any CONTRACT, including any electronic copies, images, or scans of any complete CONTRACT or any part thereof.   8 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ow appearing for Facebook claimant Paul Ceglia: Milberg 1 of 1 http://newsandinsight.thomsonreuters.com/Legal/News/2012/03_-_Marc... SEARCH Login to OnePass | Settings | Help LEGAL HOME NEWS INSIGHT LEGAL MATERIALS Now appearing for Facebook claimant Paul Ceglia: Milberg COMMENTS (0) 3/5/2012 You have to have either a death wish or serious faith in a former wood pellet salesman from upstate New York to jump into Paul Ceglia's Facebook ownership case at this point. As we've reported, exhaustively, Ceglia's claim to own half of Mark Zuckerberg's stake in the soon-to-be-public social media behemoth rests on a contested 2003 contract Zuckerberg signed when he worked on some software code for Ceglia as a Harvard undergraduate. Faced with the ruthless defense mounted by Facebook's lawyers at Gibson, Dunn & Crutcher, at least four firms - including DLA Piper -- have w thdrawn from Ceglia's team. Ceglia himself has been hit with a $5,000 sanct on for discovery failures and is on the hook for tens of thousands of dollars in Gibson, Dunn fees. Gibson, Dunn, moreover, has made it pretty clear that it's scrutinizing Ceglia's New Oracle shareholder derivative suit is hall of mirrors read more » Gupta's defense doesn't depend on alternative Goldman tipster read more » Can takeover target force thwarted acquirer to pay costs? read more » lawyers for representing the val dity of a contract Facebook considers an outright fraud. None of that has dissuaded Sanford Dumain, the chairman of Milberg. "We took a good hard look at all of the information available, including ev dence in Mr. Ceglia's favor, and we believe he deserves to have his day in court," Dumain said in a statement. "We look forward to examining records from computers that Mr. Zuckerberg used when he was a freshman at Harvard and other records that will help answer questions about the ownership of Facebook. We hope that the court will rule that the time has come for that process to begin." Through a Milberg spokesman, I sent Dumain questions about Gibson, Dunn's assertion that Ceglia's 2003 contract is a forgery and that the firm has located the original, which makes no mention of Facebook, in an email Ceglia allegedly sent from his parents' computer to Sidley Austin. Dumain declined to answer specific quest ons but said in an email response, "We look forward to a vigorous discovery process that will enable us to examine all of the relevant information available." Dumain will be working with Dean Boland of Boland Legal, who came aboard for Ceglia in November. Boland has told us that the recent sanction order against Ceglia, which came out of exped ted discovery against Ceglia, clears up issues from before he got into the litigat on. He said that once Ceglia is permitted to obtain discovery from Zuckerberg, the case will look very different. Boland has also questioned why Facebook and Gibson Dunn have not moved to dismiss the case, which was supposed to be the goal of expedited discovery. Dumain's statement raises the same question. "Defense counsel previously told the court and media that Facebook would move to dismiss this case, so we are pleased that the judge has scheduled a conference to address the deadlines for the commencement and completion of discovery," Dumain's statement said. "It should be up to a jury to weigh the contradictory claims, including evidence that supports Mr. Ceglia's case, such as his e-mail correspondence with Mr. Zuckerberg and experts' testimony about the authenticity of the contract." Boland told me Monday that Milberg thoroughly vetted the evidence before signing on with Ceglia. "They saw the lack of any experts on Facebook's s de who contradict our experts who have found the contract to be authentic," he said. "As soon as Milberg determined that, they said they were going to join us and bring all their resources to bear." Orin Snyder of Gibson, Dunn declined to comment. (Reporting by Alison Frankel) Follow Alison on Twitter: @AlisonFrankel Follow us on Twitter: @ReutersLegal Register or log in to comment. © 2011 THOMSON REUTERS CONTACT US PRIVACY POLICY TERMS OF USE COPYRIGHT SITE MAP 3/25/2012 10:34 PM EXHIBIT U From: Dean Boland [mailto:dean@bolandlegal.com] Sent: Friday, February 17, 2012 1:29 PM To: Southwell, Alexander; Paul Argentieri Subject: Consent to court order/subpoena to obtain email account information Alex: Mr. Ceglia will consent to a subpoena/court order enabling Defendants to have their electronic discovery firm acquire data related to the webmail accounts for which he just recently provided executed consent forms. Mr. Ceglia had no recollection of these email accounts until they appeared in the most recent production from your electronic discovery firm, hence, his prior declarations are not invalid and we reject your use of the argumentative claim that he "concealed" these email accounts. Concealment implies he was aware of and had recalled having such accounts and chose not to disclose them when ordered. Those are not the facts and you are now on notice to withdraw any such claims of concealment as you have no good faith basis to make such a claim. Mr. Ceglia has, at the least since my entrance into this case, and will continue to, comply with all court orders. You have failed to respond to my request as to whether you want from him a declaration that is based on other than his personal knowledge regarding the Jason Holmberg issue. I presume you have given up on pursuing a declaration from him based entirely on hearsay unless I hear otherwise. As you know, Judge Arcara directed Judge Foschio to initiate regular discovery. We have timely submitted to you a preservation letter and proposed ESI discovery plan to comply with the Judge's order. We will comply with the timelines in that order whether Defendants cooperate or not. The side issues of these lingering noncompliance claims are to be treated as secondary to the standing order of the court regarding those dates of compliance. While Defendants may want to linger in this netherworld of expanding non-compliance claims, we are preparing to engage in full discovery starting early April and setting a trial date in a reasonable time thereafter. It's best if we all keep our eye on the ball here realizing we are going to trial, probably within the year. Dean. -Dean Boland Owner/Member Boland Legal, LLC 18123 Sloane Avenue Lakewood, Ohio 44107 216.236.8080 ph 866.455.1267 fax dean@bolandlegal.com 1 Please note, I typically only review my emails once daily. If there is something urgent in any email, please do not hesitate to contact my office at 216-236-8080. 2 EXHIBIT V From: Dean Boland [mailto:dean@bolandlegal.com] Sent: Friday, February 17, 2012 10:19 PM To: Southwell, Alexander; Paul Argentieri Subject: Recent letter regarding claimed non-compliance Alex: I am working on a response to your complaints about our privilege designations. I will modify those privilege claims as appropriate following my review of those items and the applicable case law. I will have this response to you next week. Following your receipt of that information, I suggest a phone call to resolve any lingering matters more efficiently than the back and forth emails. I am available most of next week to schedule that call. Please provide two good dates and times after Wednesday to discuss. This communication is obviously part of my duty to continue to meet and confer to resolve our issues which we are doing in good faith at this point. I appreciate the urgency of your demands to get responses to you as it reflects your sincere interest in complying with the court's order about the 16(b) conference and getting prepared for trial. Now that a trial in this matter is a certainty, it has finally created an environment where we can both pull in the same direction, i.e. reasonable discovery and then a trial. I don't know what your experience is, but I find it's always good to actually try cases on a regular basis to keep those skills sharp, get out of the office slogging away with paper and such. Anyhow, please review the proposed ESI protocol and preservation letter and give me a date and time next week you would be available for a call about that. Have a great weekend. Talk to you soon. Dean. -Dean Boland Owner/Member Boland Legal, LLC 18123 Sloane Avenue Lakewood, Ohio 44107 216.236.8080 ph 866.455.1267 fax dean@bolandlegal.com Please note, I typically only review my emails once daily. If there is something urgent in any email, please do not hesitate to contact my office at 216-236-8080. 1 EXHIBIT W From: Dean Boland [mailto:dean@bolandlegal.com] Sent: Monday, January 09, 2012 9:56 PM To: Southwell, Alexander Cc: Paul Argentieri Subject: RE: Subpoenas to my client's parents Alex: I don't represent them. Paul Ceglia can object to a variety of things. Where is the motion to dismiss? We can't wait much longer without moving the court for regular discovery which the court clearly indicated it was favorable to. I want to give you guys a fair shot to file it given you've undoubtedly promised your clients you would file it and win it. I think we and the court are trying to help you and Orin out of this little corner you've painted yourself into with the year of fraud dismissal proclamations. But, we all need to bring this case in for trial soon. Time is running out. Let me know if you need anything from us to help you work with your client about the realities here. I have no reason to think you're not a smart lawyer. You know how this is going to end at trial. Dean. Dean Boland Owner/Member Boland Legal, LLC dean@bolandlegal.com 216.236.8080 On Jan 9, 2012 9:24 PM, "Southwell, Alexander" wrote: Mr. Boland: Your January 2, 2012 email indicated that with regard to service of the subpoena to Carmine Ceglia, “we are not going to contest that at this time.” Since the only attorney who could contest service of a subpoena on a third-party is one representing that third-party, we reasonably believed you were informing us that you were representing Carmine Ceglia for purposes of the subpoena. If you are not, we will work directly with Carmine Ceglia although the lack of counsel assisting in the endeavor may delay full compliance with the Court’s expedited discovery orders. Thanks 1 Alex From: Dean Boland [mailto:dean@bolandlegal.com] Sent: Monday, January 02, 2012 3:09 PM To: Southwell, Alexander; Paul Argentieri Subject: Subpoenas to my client's parents Alex: My client's parents had a subpoena from you taped to the door of their residence in New York about a week ago. However, I have been informed that my client's parents have been out of the country for about a month. It is further my understanding that they are not due to return until next week. I don't believe taping to their door is valid service, but we are not going to contest that at this time. I am just informing you that I fully expect my client's parents will certainly promptly comply with the subpoena upon their return to the country. Dean. -Dean Boland Owner/Member Boland Legal, LLC 18123 Sloane Avenue Lakewood, Ohio 44107 216.236.8080 ph 866.455.1267 fax dean@bolandlegal.com Please note, I typically only review my emails once daily. If there is something urgent in any email, please do not hesitate to contact my office at 216-236-8080. 2 This message may contain confidential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message. 3