Ceglia v. Zuckerberg et al

Filing 126

MOTION to Stay re 117 Order, Terminate Motions by Paul D. Ceglia. (Attachments: # 1 Memorandum in Support, # 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 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 Order) providing in pertinent part,
Plaintiff shall [] 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. On or before August 29, 2011, Plaintiff shall provide such consent
on a form or forms to be provided by Stroz Friedberg. Plaintiff shall at the same
time provide to Stroz Friedberg a password for, and facilitate access by Stroz
Friedberg to, each identified account.
(August 18 Order at 3, ¶ 5.) This provision of the Order far exceeds the scope of
Magistrate Judge Foschio’s July 1, 2011 Order Granting Expedited Discovery (Doc. No.
83) and constitutes a massive invasion of Plaintiff Paul Ceglia’s privacy with no
concomitant showing that it is reasonably calculated to lead to admissible evidence.
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II.
LEGAL STANDARD
A court may stay discovery for good cause shown. Spencer Trask Software & Info.
Servs. v. RPost Int’l Ltd., 206 F.R.D. 367, 368 (S.D.N.Y. 2002) (citing F.R.C.P. 26(c)). Good
cause exists where only a short stay is requested, the discovery is broad and burdensome, and the
opposing party will not suffer prejudice. See id.
III.
ARGUMENT
A. Plaintiff Requests a Short Stay to Have His Objections Heard
Ceglia must and will file his objections by September 1, 2011 for them to be timely under
F.R.C.P. 72(a). As such, Ceglia only requests a stay for the short time necessary for the Court to
consider the objections and rule accordingly.
B. Paragraph 5 of the Order Constitutes an Abuse of Discretion and Imposes a Heavy
Burden on Ceglia
1. The Scope of the July 1 Order
Ceglia’s email accounts and any information that does not pertain directly to the emails
attached to the Amended Complaint are outside the scope of Magistrate Judge Foschio’s July 1,
2011 Order (Doc. No. 83) (July 1 Order) and not subject to expedited discovery. Magistrate
Judge Foschio ordered expedited discovery in this case after extensive briefing and oral
argument. (See Docs. Nos. 44-82.) As a result, the July 1 Order required, in part, that Ceglia
produce “the original, native electronic files consisting of or containing the purported emails
described in the Amended Complaint and all electronic copies of the purported emails.” (July 1
Order at 2, ordering para. 2.) At oral argument on August 17, 2011, Magistrate Judge Foschio

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asked Defendants’ counsel whether inspection of Ceglia’s email accounts “was an issue that was
addressed with the order.” (Transcript of August 17, 2011 Oral Argument (Doc. No. 121)
(Transcript) at 60, ll. 18-19.) In response, Defendants’ counsel stated, “No, Your Honor.” (Id. at
60, l. 20.) As Ceglia’s counsel pointed out, “This is not anything that was contemplated at the
time of the July 1st order . . . This is a new request.” (Id. at 96, ll. 18-19; 97, ll. 3-4.)
“A party may not seek discovery from any source before the parties have conferred as
required by Rule 26(f), except . . . when authorized by . . . by court order.” F.R.C.P. 26(d)(1).
Furthermore, a motion to compel discovery, like the one brought by Defendants (Doc. No. 99),
necessarily presupposes the existence of a discovery obligation. See F.R.C.P. 37(a). However,
as discussed above, Ceglia was under no obligation to provide access to his email accounts.
Rather, Ceglia was obligated merely to produce “the original, native electronic files consisting of
or containing the purported emails described in the Amended Complaint and all electronic copies
of the purported emails” if such documents were in his possession custody or control. (See July
1 Order at 2, ordering para. 2.)
Given the above, the issue of access to the email accounts was not before Magistrate
Judge Foschio on Defendants’ Cross-motion to compel. As such, Magistrate Judge Foschio
abused his discretion as a matter of law by failing to require Defendants to fully brief a further
request for expedited discovery pursuant to Rule 26(d)(1) and allow Ceglia to cross-move for a
protective order pursuant to Rule 26(c).
2. Burden on Ceglia
The August 18 Order requires Ceglia to give Defendants’ experts unfettered access to
every email he has written since 2003. (See Order at 3, ¶ 4.) In today’s world, people commonly
discuss their most private and important matters by email. As such, allowing Defendants’

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experts to search through and read all of Ceglia’s emails since 2003 undoubtedly will give them
a view of matters far outside the scope of this litigation and far inside Ceglia’s private life, a
view to which no one is entitled and that is protected from government prying by the most sacred
components of the Constitution. It is for these reasons that Rule 26(d) allows a party to seek
protection, and it is for these reasons that Ceglia must be given an opportunity to be heard on this
issue according to the proper procedures.
C. Prejudice to Defendants
At this point, Defendants have obtained a massive amount of discovery, and Ceglia has
not yet obtained any. Furthermore, Ceglia already certified under oath that he provided the
electronic media “contain[ing] all the electronic communications [he has] had with Defendants
regarding the claims set forth in the First Amended Complaint.” (Declaration of Paul D. Ceglia,
dated July 15, 2011 (Doc. No. 88) at 2, ¶ 3.) This is all that was required of him by the July 1
Order. (See July 1 Order at 3, ¶ 5.) At some point, discovery must have limitations, and the
limit has been reached and exceeded.1
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1 The Court should note that Ceglia has complied fully with all aspects of the August 18 Order. (See Exhibit A to
Declaration of Nathan Shaman, dated August 29, 2011.)

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IV.
CONCLUSION
Based on the foregoing arguments, Plaintiff respectfully requests that the Court find good
cause to stay the discovery authorized by paragraph 5 of the August 18 Order pending resolution
of Plaintiff’s forthcoming objections to that Order.

Dated: August 29, 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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