Ceglia v. Zuckerberg et al

Filing 106

MEMORANDUM in Opposition re 95 Cross MOTION to Compel, 91 MOTION to Compel Defendant Zuckerberg's Compliance with the Court's Order of July 1, 2011 filed by Paul D. Ceglia. (Attachments: # 1 Affidavit, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Affidavit, # 6 Exhibit A, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F, # 12 Exhibit G, # 13 Exhibit H, # 14 Affidavit, # 15 Exhibit A, # 16 Exhibit B, # 17 Exhibit C, # 18 Certificate of Service)(Lake, Jeffrey)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
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:
PAUL D. CEGLIA,
:
:
Plaintiff,
:
:
v.
:
:
MARK ELLIOT ZUCKERBERG and
:
FACEBOOK, INC.,
:
:
Defendants.
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Civil Action No. 1:10-cv-00569RJA

REDACTED DECLARATION OF JEFFREY A. LAKE
I, Jeffrey A. Lake, Esq., submit this Declaration in support of Plaintiff’s Motion to
Compel Defendant Zuckerberg’s Compliance with the Court’s Order of July 1, 2011 (Motion to
Compel) and in opposition to Defendants’ Cross-motion to Compel (Cross-motion to Compel),
and hereby declare:
1.

I am an attorney licensed to practice law in the State of California and duly

admitted to practice before the United States District Court for the Western District of New
York. I am counsel of record for Plaintiff Paul D. Ceglia in the above-captioned matter. I make
this declaration based upon personal knowledge.
DEFENDANT ZUCKERBERG’S CERTIFICATION OF GOOD-FAITH EFFORTS
2.

In my declaration dated July 25, 2011, I stated, “As of the time of filing of the

Motion to Compel, and to the best of Plaintiff’s knowledge and belief, Defendant Zuckerberg has
not filed his Certification of Good-Faith Efforts either by service or through the Court’s
ECM/ECF system.” (Declaration of Jeffrey A. Lake Pursuant to Local Rule 7(d)(4), dated July
15, 2011 (Doc. No. 87) at 2, ¶ 6 (emphasis added).)

3.

At the time Plaintiff filed his Motion to Compel on July 20, 2011, I was not aware

nor did I believe that Alexander Southwell had emailed to me Defendant Zuckerberg’s
Certification of Good-faith Efforts.
4.

After discussions with Mr. Southwell on July 26, 2011, I discovered that on July

15, 2011, Mr. Southwell did in fact email to me electronic copies of the Declaration of Mark
Elliot Zuckerberg Concerning Handwriting Samples and the Declaration of Alexander H.
Southwell Concerning Handwriting Samples.
5.

Subsequently, I personally apologized to Mr. Southwell for the oversight and

acknowledged receipt of the Certification to Mr. Southwell by email. A true and correct copy of
that email is attached hereto as Exhibit A.
THE ELECTRONIC ASSETS
6.

On July 15, 2011, Plaintiff filed a declaration identifying, “An electronic image of

a [sic] one (1) Seagate 120GB internal hard drive SN: 3JT1JQF6.” (Declaration of Paul D.
Ceglia, dated July 15, 2011 (Doc. No. 88) at 1, ¶ 2(A)(i).)
7.

On July 15, 2011, I was in Buffalo, New York. I coordinated by telephone with

Rafey Balabanian, Esq., a partner at the law firm of Edelson McGuire, LLC (Edelson McGuire),
located in Chicago, Illinois, to ensure that all electronic assets were to be produced according to
the Court’s July 1, 2011 Order (Doc. No. 83) and the Electronic Asset Inspection Protocol (Doc.
No. 85).
8.

On July 14, 2011, based on the information available to me at the time, I filed a

declaration certifying that all electronic assets in Plaintiff’s possession, custody, or control were
being produced to Defendants for inspection pursuant to the Order. (See Declaration of Jeffrey
A. Lake, dated July 14, 2011 (Doc. No. 87).)

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9.

On July 16, 2011, Mr. Southwell informed me by email that the image of the

Seagate hard drive had not been produced to Stroz Friedberg, LLC (Stroz Friedberg) on July 15,
2011. A true and correct copy of that email is attached hereto as Exhibit B.
10.

Mr. Southwell requested that the image of the Seagate hard drive be made

available to Stroz Friedberg on Monday, July 18, 2011. (See Exhibit B.)
11.

That same day, I learned from Mr. Balabanian that the image of the Seagate hard

drive had been inadvertently omitted from the assets produced to Stroz Friedberg for forensic
imaging.
12.

Accordingly, I responded by email to Mr. Southwell to inform him that the image

of the Seagate hard drive would be made available on July 18, 2011 as requested. A true and
correct copy of that email is attached hereto as Exhibit C.
13.

On July 18, 2011, the image of the Seagate hard drive was produced to Stroz

Friedberg for forensic imaging at the offices of Project Leadership Associates (PLA).
14.

To my knowledge, Defendants have suffered no prejudice, inconvenience, or

additional costs due to production of the electronic image of the Seagate hard drive on July 18,
2011 for two reasons:
a. the actual Seagate hard drive from which the image was made was produced
to Stroz Friedberg timely on July 15, 2011 in Sarasota, Florida and
b. Defendants’ experts already needed to be present at PLA on July 18, 2011 to
continue with the imaging of the electronic assets that Ceglia produced on
July 15, 2011.
15.

Despite Defendants’ continued mischaracterizations of statements I may have

made and their repeated inferences that I have somehow been acting unethically or obstructing

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the production of information required by the Court’s Order, I have gone to great lengths to
accommodate them, including going beyond the scope of the Order by producing information
outside of Ceglia’s possession, custody, or control.
16.

For example, on July 19, 2011, after meeting and conferring with Defendants’

attorney Mathew Benjamin, Esq., out of an abundance of caution and as a showing of good faith,
Plaintiff also produced a computer in Paul Ceglia’s parents’ possession, custody, and control.
17.

[REDACTED]

18.

Contrary to Mr. Southwell’s assertions (see Declaration of Alexander H.

Southwell, dated August 4, 2011 (Doc. No. 97) at 7, ¶ 24), on July 19, 2011 I did not have a
conversation with him concerning the residence of Paul Ceglia. Furthermore, although I did
discuss with Mr. Southwell my attempts to locate information, I never told him that Paul Ceglia
did not participate in the production of the Electronic Assets.

To the contrary, it is my

understanding that Paul Ceglia produced everything in his possession, custody, or control related
to the Order.
19.

As of the date of filing of this declaration, based upon my diligent search and

inquiry, and based upon my communications with Paul Ceglia, I continue to certify that all
electronic assets in Plaintiff’s possession, custody, or control have been produced to Stroz
Friedberg in compliance with the Order.
THE ELECTRONIC ASSET INSPECTION PROTOCOL
20.

The Electronic Asset Inspection Protocol required Stroz Friedberg to provide the

Presumed Relevant Materials to Plaintiff so that Plaintiff could review the Presumed Relevant
Materials for privileged and confidential information before they were produced to Defendants.
(Electronic Asset Inspection Protocol at 2-3, ¶¶ 3-4.)

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21.

The Electronic Asset Inspection Protocol then required Plaintiff to provide a

privilege log concerning the Presumed Relevant Materials to Stroz Friedberg five (5) days after
Stroz Friedberg produced them to Plaintiff. (Id. at 3, ¶¶ 4-5.)
22.

Stroz Friedberg did not provide Plaintiff with the password necessary to access

the Presumed Relevant Materials until Thursday, July 28, 2011 at 3:58 p.m. EST.
23.

The privilege log was provided to Defendants by email on August 2, 2011 at 1:37

p.m. EST, within the five (5) day requirement. (See Declaration of Nathan Shaman, dated
August 10, 2011, at 2, ¶ 8.)

I hereby certify and declare under penalty of perjury that the foregoing is true and accurate.
DATED: August 10, 2011
s/ Jeffrey A. Lake

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