Ceglia v. Zuckerberg et al

Filing 639

DECISION and ORDER denying 624 Motion for Protective Order; dismissing Government's motion to intervene 631 . Signed by Hon. Leslie G. Foschio on 12/17/2012. (SDW) (Main Document 639 replaced on 12/18/2012) (SDW).

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK PAUL D. CEGLIA, Plaintiff, v. MARK ELLIOT ZUCKERBERG, FACEBOOK, INC., DECISION and ORDER 10-CV-569A(F) Defendants. APPEARANCES: PAUL A. ARGENTIERI, ESQ. Attorney for Plaintiff 188 Main Street Hornell, New York 14843 BOLAND LEGAL, LLC Attorney for Plaintiff DEAN M. BOLAND, of Counsel 18123 Sloane Avenue Lakewood, Ohio 44107 GIBSON, DUNN & CRUTCHER, LLP Attorneys for Defendants ORIN S. SNYDER, ALEXANDER H. SOUTHWELL, THOMAS H. DUPREE, JR., of Counsel 200 Park Avenue, 47th Floor New York, New York 10166-0193 HARRIS BEACH LLP Attorneys for Defendants TERRANCE P. FLYNN, of Counsel Larkin at Exchange 726 Exchange Street, Suite 1000 Buffalo, New York 14210 By papers filed December 5, 2012 (Doc. No. 624), Plaintiff moves for a protective order (“Plaintiff’s motion”). Defendants filed, on December 12, 2012, Defendants’ Opposition To Ceglia’s Motion For A Protective Order (Doc. No. 630) (“Defendants’ Response”). Plaintiff’s Reply To Response To Motion For Protective Order was filed December 14, 2012 (Doc. No. 628) (“Plaintiff’s Reply”). Separately, on December 13, 2012, the United States of America (“the Government”) filed, under seal, the Government’s Response To Plaintiff’s Motion For A Protective Order (Doc. No. 631) (“Government’s Response”). In the Government’s Response, the Government moves in this action, pursuant to Fed.R.Civ.P. 24(a) and 24(b), to intervene for the limited purpose of opposing Plaintiff’s motion and requests this court hold Plaintiff’s motion in abeyance pending a determination by Hon. Andrew L. Carter, the district judge assigned to Plaintiff’s indictment, 12-CR-876(ALC), currently before the Southern District of New York, on the Government’s motion to compel compliance by Paul A. Argentieri, Esq., one of Plaintiff’s attorneys of record in this action, with a Grand Jury subpoena seeking production of the original purported contract in this action presently scheduled for a hearing on December 27, 2012 (“the contract document”) (“Government’s motion to intervene”). Based on the reasons and authorities stated in Defendants’ Response, Plaintiff’s motion should be denied. Specifically, to warrant issuance of a protective order “a party must establish that the proposed discovery ‘will result in a clearly defined, specific and serous injury.’” Carlson v. Geneva City School District, 277 F.R.D. 90, 94 (W.D.N.Y. 2011) (quoting In re Sept. 11 Litig., 262 F.R.D. 274, 277 (S.D.N.Y. 2009) (quoting In re Terrorist Attacks on Sept. 11 Litig., 454 F.Supp.2d 220, 222 (S.D.N.Y. 2006))). As revealed in Plaintiff’s Reply, Judge Carter is fully aware of the need for a satisfactory means to provide safe and secure access by the parties to the contract document, and has directed the parties in the criminal case to attempt to effect a mutually satisfactory arrangement for that purpose (Transcript of Plaintiff’s arraignment conducted November 2 28, 2012, Doc. No. 638-1 at 19-20). Moreover, an accurate copy of the contract document was made as part of the testing protocol established by the parties, and approved by the court, in this action. Defendants’ Response at 1-2, n. 1 referencing (citing to Doc. No. 624-2 at 2). Plaintiff’s counsel in this action may wish to consult Plaintiff’s defense counsel(assuming this has not already occurred) to facilitate Plaintiff’s need to preserve the integrity of the contract document while providing for the reasonable testing, to the extent necessary, of the contract document in connection with the criminal proceeding now pending against Plaintiff in the Southern District of New York. Additionally, while Plaintiff correctly notes that Judge Carter, in addressing at Plaintiff’s arraignment, the question of the parties’ need for secure access to the contract document, presumably in Plaintiff’s or Plaintiff’s attorneys’ possession, and suggested the need for a “protective order” to govern such access, contrary to Plaintiff’s representation of the colloquy, Plaintiff’s Reply at 1-2, a full and fair reading of Judge Carter’s comment strongly indicates the court was making reference to Plaintiff’s criminal proceeding, not this action as Plaintiff appears to imply (Doc. No. 638-1 at 20) (“And then [after agreement on the proposed custody and inspection protocol for the] the parties can work out amongst themselves how the contract is returned to Mr. Ceglia’s lawyer in the civil case.”) (underlining added). Finally, the court notes there is no order in this action governing the custody of the contract document. Accordingly, Plaintiff has failed to establish that absent the requested protective order, Plaintiff will suffer “a clearly defined, specific and serious injury.” Carlson, 277 F.R.D. at 94 (internal quotation omitted). 3 CONCLUSION Based on the foregoing, Plaintiff’s motion (Doc. No. 624) is DENIED; the Government’s motion to intervene (Doc. No. 631) is DISMISSED as moot. SO ORDERED. /s/ Leslie G. Foschio ________________________________ LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE Dated: December 17, 2012 Buffalo, New York 4