Ceglia v. Zuckerberg et al
DECLARATION signed by Alexander H. Southwell re 588 Reply to Response to Motion filed by Mark Elliot Zuckerberg, Facebook, Inc. filed by Mark Elliot Zuckerberg, Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R)(Snyder, Orin)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
MARK ELLIOT ZUCKERBERG and
Civil Action No. 1:10-cv-00569-RJA
ALEXANDER H. SOUTHWELL
I, ALEXANDER H. SOUTHWELL, hereby declare under penalty of perjury that the
following is true and correct:
I am an attorney licensed to practice law in the State of New York and admitted to
practice before this Court. I am a partner in the law firm of Gibson, Dunn & Crutcher LLP,
counsel of record for Mark Elliot Zuckerberg and Facebook, Inc. in the above-captioned matter.
I make this declaration, based on personal knowledge, in support of Defendants’ Reply
Memorandum of Law in Support of Defendants’ Motion to Dismiss.
This declaration describes and authenticates documentary and other evidence in
support of Defendants’ Reply Memorandum of Law in Support of Defendants’ Motion to
A true and correct copy of the criminal complaint filed against Paul Ceglia in
United States of America v. Ceglia, No. 12-MJ-2842 (S.D.N.Y. October 25, 2012) is attached
hereto as Exhibit A.
Plaintiff Paul Ceglia’s Response to Defendants’ Motion to Dismiss is rife with
distortion, falsehoods, and pretext. Many of these numerous false assertions are addressed in
Defendants’ Reply. However, given the large number of distortions in Ceglia’s brief and in the
interest of efficiency, Defendants succinctly address those that are not are addressed in
Defendants’ Reply in the chart attached hereto as Exhibit B.
The Seagate hard drive, which Ceglia claims he did not “purchase, own, use or
access” (Opp. 50), contains files related to this litigation, including “emails with mark and jeff
091803 incl email list.doc;” “mark emails 082903.doc;” and “emails with mark and jeff
102003.doc.” This is demonstrated by the first privilege log created by Ceglia during expedited
discovery, which lists these files and others. See Unredacted August 4, 2011 Southwell
Declaration (filed in redacted form as Doc. No. 97), Ex. I, item numbers 33 through 39. The
“Source File Path” column indicates that item numbers 33 through 39 are from source media
“FL02,” which is Stroz Friedberg’s identifier for the Seagate hard drive produced to Defendants
in Sarasota, Florida on July 15, 2011. See Doc. No. 88. For the convenience of the Court, a true
and correct copy of the relevant portions of this privilege log is attached hereto as Exhibit C.1
During the recent detention hearing in United States of America v. Ceglia, No. 12-
MJ-2842, Ceglia referred to the Seagate hard drive as “my personal computer.” See October 31,
2012 Hearing Transcript, a true and correct copy of which is attached hereto as Exhibit D, at
Note that Ceglia originally designated these files containing purported copy-pasted emails as
“Confidential” pursuant to the protective order in this case. Doc. No. 86. Defendants
challenged these and other designations (Doc. No. 95), and Ceglia submitted briefing in
support of these designations (Doc. No. 106). The Court initially sustained Ceglia’s
confidentiality designations related to these item numbers, noting that he “could have held a
good faith belief” that they contained information covered by the protective order. See Doc.
No. 107 at 6. Ceglia then publicly filed these documents as an exhibit to a motion in
November 2011, thereby waiving his confidentiality over them and demonstrating that he did
not have a good-faith belief in their confidentiality. See Doc. No. 224-1.
During the course of expedited discovery, Stroz Friedberg discovered three emails
sent from Ceglia’s business associate Robert Frykberg to Ceglia at the email@example.com email
address in 2006. A true and correct copy of the portion of the production log referencing those
emails is attached hereto as Exhibit E.
At my direction, Kroll Associates, Inc. (“Kroll”), an intelligence and investigation
firm engaged by Defendants, conducted a search of public records to investigate the phone
number listed in the March 3, 2004 email Ceglia sent to Jim Kole, Esq. attaching the StreetFax
Contract. Kroll determined that this (727) phone number was not a traditional landline number,
but was owned by a Voice over Internet Protocol, or VoIP, provider. VoIP numbers are portable
phone numbers and can be used anywhere with an Internet connection.
There are numerous scholarly articles that establish that the underlying
methodological principles of Gerald LaPorte’s phenoxyethanol (PE) test are well-established,
scientifically valid, and have been used by ink chemists for at least a decade. Those articles are
cited in LaPorte’s Report (Doc. No. 326) and in Defendants’ Reply, and Defendants can provide
them to the Court upon request.
A true and correct copy of the Court’s decision in Cott Beverages Inc. v.
Americann Co-Pack Inc. et al, No. 100402774 (Utah 4th Dist. October 19, 2012), is attached
hereto as Exhibit F. In that decision, the Utah court denied a motion in limine to exclude Gerald
LaPorte’s testimony under Daubert and ruled that LaPorte’s methodology satisfies Daubert. The
court found that LaPorte is “extremely qualified and is arguably one of the foremost experts in
the specific area of GC/MS”; that GC/MS analysis is “generally accepted by the relevant
scientific community”; that the reliability of “the dynamic approach to ink-dating by GC/MS
analysis” is “demonstrated through extensive peer reviewed research and literature”; and that
LaPorte’s testimony was “not only helpful, but necessary” to the trier of fact. Ex. F at 7-12.
A true and correct copy of an excerpt of the deposition testimony of Plaintiff’s
expert Jim Blanco in the case Edens v. Kennedy, No. 2:01-0933, 2003 WL 25430114 (S.D.W.Va.
July 22, 2003), is attached hereto as Exhibit G.
Three professional forensic societies—the American Board of Forensic Document
Examiners (“ABFDE”), the Southwest Association of Forensic Document Examiners
(“SWAFDE”), and the American Academy of Forensic Sciences (“AAFS”)—have launched
investigations into alleged ethical violations by Blanco. While investigations were pending in
the ABFDE and the SWAFDE, Blanco “resigned” from both professional societies. The
thorough AAFS investigation resulted in the Ethics Committee, chaired by a former judge and
composed of preeminent document examiners, finding unanimously that Blanco violated
multiple sections of the AAFS’s Code of Ethics.
a. Judge Haskell Pitluck, the Chair of the Ethics Committee of the AAFS,
describes these events in his January 8, 2010 declaration submitted in support
of Defendant’s Opposition to Plaintiff’s Motion for Preliminary Injunction in
the case of James A. Blanco v. American Academy of Forensic Sciences, No.
CV 09 2780 SI (N.D. Cal.). A true and correct copy of this declaration is
attached hereto as Exhibit H.
b. Attached hereto as Exhibit I is a true and correct copy of Blanco’s May 12,
2008 letter of resignation from the ABFDE, as it was attached to the Haskell
c. Attached hereto as Exhibit J is a true and correct copy of an October 12, 2007
letter from forensic document examiner David S. Moore to Judge Pitluck
regarding SWAFDE’s investigation and Blanco’s subsequent resignation from
SWAFDE, as it was attached to the Haskell Declaration, supra.
d. In the November 2010 newsletter of the AAFS, the President Joseph P. Bono
issued a message describing the circumstances of Blanco’s expulsion, his
lawsuit, and the ultimate settlement. A true and correct copy of this
newsletter is attached hereto as Exhibit K. Mr. Bono describes the AAFS
findings against Blanco, including that he submitted “an erroneous and
misleading report to be used in the judicial process, thereby diminishing
confidence in forensic scientists and their disciplines,” and that he “knowingly
misrepresent[ed] the data used to arrive at the conclusions in his report.” Ex.
K at 1. Mr. Bono also makes clear that, while AAFS vacated Blanco’s
expulsion and allowed him to resign as part of the settlement of his suit
against them, no Ethics Committee findings were overturned or vacated. Id.
A true and correct copy of the April 5, 2012 letter from Defendants to Plaintiff’s
counsel Dean Boland, accompanying the production of emails from Zuckerberg’s Harvard
account, is attached hereto as Exhibit L.
True and correct copies of emails dated July 30, 2003 and November 19, 2003,
which were extracted from Zuckerberg’s Harvard account and produced to Plaintiff on April 5,
2012, are attached hereto as Exhibit M.
A true and correct copy of excerpts of the transcript of Defendants’ July 11, 2012
deposition of Larry Stewart is attached hereto as Exhibit N.
A true and correct copy of excerpts of the transcript of Defendants’ July 16, 2012
deposition of Walter Rantanen is attached hereto as Exhibit O.
A true and correct copy of excerpts of the transcript of Defendants’ July 25, 2012
deposition of James Blanco is attached hereto as Exhibit P.
A true and correct copy of excerpts of the transcript of Defendants’ June 29, 2012
deposition of Jerry Grant is attached hereto as Exhibit Q.
A true and correct copy of the April 13, 2011 Kasowitz Letter from Kasowitz
Benson attorney Aaron Marks, Esq. to Ceglia’s then-attorneys at DLA Piper LLP and Lippes
Mathias Wexler Friedman LLP (copying current attorney Paul Argentieri, Esq.) is attached
hereto as Exhibit R.
Pursuant to the Court’s August 18, 2011 Order (Doc. No. 117), Defendants were
permitted to take four samples from the purported “PC” initials on page one of the Work for Hire
Document. See also Doc. No. 112 ¶ 8. Defendants’ experts Dr. Lyter and Mr. LaPorte took all
four of the samples available to Defendants in August 2011.
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