Ceglia v. Zuckerberg et al

Filing 120

MEMORANDUM in Support re 118 MOTION to Stay re 117 Order, Terminate Motions filed by Paul D. Ceglia. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Exhibit A, # 4 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

PLAINTIFF’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO STAY DISCOVERY
I.
INTRODUCTION
On August 18, 2011, Magistrate Judge Foschio entered an Order (Doc. No. 117) (August
18, 2011 Order) directing Plaintiff to submit a supplemental declaration, on or before August 29,
2011, identifying:
(A) the electronic copies or images of the purported contract attached to any
complaint in this action; (B) all electronic versions or purported versions of any
contract by and among Defendant Zuckerberg, Plaintiff and/or other persons
associated with StreetFax (“Contract”), including the electronic copies or images
of any Contract in the possession, custody, or control of Plaintiff’s attorneys,
experts, or other agents; (C) all electronic versions of any emails or purported
emails by and among Defendant Zuckerberg, Plaintiff and/or other persons
associated with StreetFax (“Emails”); (D) the forms described in paragraph 8 of
the Declaration of Paul D. Ceglia, dated June 12, 2011 (Doc. No. 65); (E) the
removable storage devices described in paragraph 6 of the Declaration of
Alexander H. Southwell, dated August 15, 2011 (Doc. No. 111); (F) all computers
and electronic media in Plaintiff’s possession custody, or control, excluding
Plaintiff’s attorneys and experts’ computers, since June 30, 2010; and (G) all
computers and electronic media no longer in Plaintiff’s possession, custody, or
control that contain or contained information relevant to any Contract, any
Emails, or this action.
(August 18, 2011 Order at 1-2, ¶ 2.)

The August 18, 2011 Order further directs, “On or before August 29, 2011,
Plaintiff shall produce all files, computers, or electronic media identified in the
Supplemental Declaration, except for the items identified that are no longer in Plaintiff’s
possession, custody, or control. All files shall be produced in their native format.” (Id. at
2, ¶ 3.)
Furthermore, by August 29, 2011, “Plaintiff shall also identify all email accounts
accessible through web-based interfaces that Plaintiff has used since 2003, including but
not limited to his gmail.com, msn.com, tmail.com, and Adelphia.net accounts. Plaintiff
shall consent to the acquisition and inspection by Stroz Friedberg of the contents of all
such accounts.” (Id. at 3, ¶ 5.)
As to the original contract, the August 18, 2011 Order states, “On or before
August 29, 2011, Plaintiff shall produce the Hard-Copy Documents, as defined in this
Court’s July 1, 2011 Order, at the offices of Harris Beach PLLC in Buffalo, New York.
Plaintiff shall permit Defendants’ experts to conduct the ink sampling described in
paragraph 8 of the Declaration of Dr. Albert Lyter III, dated August 15, 2011.” (Id. at 3,
¶ 6.)
Finally, the August 18, 2011 Order provides, “Defendants are authorized to issue
a subpoena under Federal Rule of Civil Procedure 45 on Sidley Austin LLP.” (Id. at 4, ¶
8.)
II.
LEGAL STANDARD
A court may stay discovery for good cause shown. Ellington Credit Fund, Ltd. v. Select
Portfolio Servs., Inc. (No. 08 Civ. 2437, S.D.N.Y. Feb. 3, 2009) at 1. In evaluating whether a

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party has shown good cause, the court considers “potential prejudice to the party opposing the
stay, the breadth of discovery sought, and the burden that would be imposed on the part[y]
responding to the proposed discovery.” (Id. at 1-2.)
III.
ARGUMENT
A. Plaintiff Will Suffer Undue Hardship and Prejudice If the Court Does Not Stay the
Broad Discovery that Magistrate Judge Foschio Ordered
The August 18, 2011 Order requires Plaintiff to engage in enormous efforts if Plaintiff is
to comply by August 29, 2011—merely eleven (11) days after the Court issued the August 18,
2011 Order. To identify and produce categories (A)-(D) (see August 18, 2011 Order at 1-2, ¶
2.), Plaintiff’s counsel have contacted all of Plaintiff’s former attorneys and Plaintiff’s experts to
obtain all responsive documents in their possession, custody, or control and in their native
format. (See Shaman Decl. at 2, ¶ 6.) So far only some of these individuals have responded, and
one expert has informed Plaintiff’s counsel that he will be out of town until August 29, 2011, the
date by which the August 18, 2011 Order requires compliance. (See id. at 2, ¶¶ 7-8.)
Additionally, all of the attorneys and experts Plaintiff’s contacted are likely to provide Plaintiff’s
counsel with extensive electronic documents that Plaintiff’s counsel will need to comb through
carefully (see id. at 2, ¶ 9), especially given that Plaintiff must provide all responsive, nonprivileged documents directly to Defendants. (See August 18, 2011 Order at 2-3, ¶ 3.)
The August 18, 2011 Order also requires Plaintiff to identify and provide access to every
email account he has used since 2003. (See id. at 3, ¶ 5.) To comply, Plaintiff must engage in
enormously time-consuming efforts to ensure that all email accounts are identified and that he
can provide the necessary login information, which may need to be obtained by contacting

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various email providers. Furthermore, the Order grants Defendants carte blanche to read through
and inspect Plaintiff’s private emails dating all the way back until 2003. (See August 18, 2011
Order at 3, ¶ 5.) This is a serious invasion of Plaintiff’s privacy. As such, Plaintiff needs a
meaningful opportunity to brief his concerns thoroughly and adequately and have them
addressed by Judge Arcara before the time for compliance runs.
Magistrate Judge Foschio also granted Defendants the opportunity to take even more ink
samples from the original contract. (See id. at 3, ¶ 6.) The Hard-copy Document Inspection
Protocol, according to which Defendants’ experts will sample the ink, allows Plaintiff’s experts
to observe the testing. However, at this point, Plaintiff does not know if his experts will be
available to observe the testing on August 29, 2011.
B. Plaintiff Has Not Yet Obtained a Transcript of the August 17, 2011 or August 18, 2011
Hearings
In order to file objections to Magistrate Judge Foschio’s August 18, 2011 Order, Plaintiff
will need to review a copy of the court reporter’s transcript for the hearings on August 17, 2011
and August 18, 2011 because Magistrate Judge Foschio made all factual and legal findings on
the oral record. Although Plaintiff has requested that the court reporter expedite transcription
and provide transcripts as soon as possible, Plaintiff has not yet received those transcripts,
providing even less time to object before the August 29, 2011 deadline. (See Lake Decl. at 2, ¶
4.)
C. Defendants Will Not Suffer Prejudice
Defendants’ goal in requesting this expedited discovery was to obtain an order allowing
them to investigate the authenticity of the original contract. (See Defendants’ Memorandum of
Law in Support of Their Motion for Expedited Discovery (Doc. No. 45.).) In this case,

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Defendants have already obtained extensive discovery pursuant to the Court’s July 1, 2011 Order
(July 1, 2011 Order). Plaintiff produced a large volume of electronic data for Defendants’
inspection. (See Declaration of Jeffrey A. Lake, dated August 22, 2011, at 1, ¶ 2.) Plaintiff also
produced the original contract for extensive, time-consuming ink and paper sampling. (See Lake
Decl. at 1, ¶ 2.)
Plaintiff has made a concerted, good-faith effort to comply with the July 1, 2011 Order.
Furthermore, Plaintiff’s counsel has already engaged in diligent efforts to comply with the
August 18, 2011 Order in the event Plaintiff’s objections are overruled and/or a stay is not
granted. (See Shaman Decl. at 2, ¶¶ 6-7.) Given that Plaintiff is doing everything possible to
comply with the Court’s discovery orders and the extensive discovery already provided to
Defendants, there is no reason to believe that Defendants will suffer prejudice if the Court grants
a stay.
IV.
CONCLUSION
Based on the foregoing arguments and those already submitted to the Court, Plaintiff
respectfully requests that the Court find good cause and stay the discovery authorized by the
August 18, 2011 Order pending resolution of Plaintiff’s forthcoming objections to that Order.

Dated: August 22, 2011
Respectfully submitted,
s/ Jeffrey A. Lake
Attorney for Plaintiff
835 Fifth Avenue, Suite 200A
San Diego, CA 92101
[phone]
[e-mail]

s/ Paul Argentieri
Attorney for Plaintiff
188 Main Street
Hornell, NY 14843
[phone]
[e-mail]
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