Ceglia v. Zuckerberg et al

Filing 131

MOTION for Discovery Objections to Magistrate Judge Foschio's August 18, 2011 Order by Paul D. Ceglia. (Attachments: # 1 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 OBJECTIONS TO MAGISTRATE JUDGE FOSCHIO’S AUGUST 18,
2011 ORDER
I.
STATEMENT OF JURISDICTION
A party may file objections to a magistrate judge’s order concerning a nondispositive
pretrial matter within 14 days of receiving a copy of that order. F.R.C.P. 72(a); L.R. Civ. P.
72(a). Magistrate Judge Foschio entered his order on August 18, 2011, and Plaintiff Paul Ceglia
was electronically served with a copy of that order on the same day.
II.
STANDARD OF REVIEW
“The district judge . . . must consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to law.” 28 U.S.C. § 636(b)(1)(A); F.R.C.P.
72(a); L.R. Civ. P. 72(a). The magistrate judge’s order is clearly erroneous “when although there
is evidence to support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.” Gualdani v. Adams, 385 F.3d 236, 240 (2d
Cir. 2004) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395; citing Bronx

Household of Faith v. Bd. of Educ., 331 F.3d 342, 348 (2d Cir. 2003)). The magistrate judge’s
order is contrary to law “if the order fails to apply the relevant law.” Lavigna v. State Farm
Mutual Auto. Ins. Co., 736 F.Supp.2d 504, 510 (N.D.N.Y. 2010) (citing Olais-Castro v. United
States, 416 F.2d 1155, 1158 n.8 (9th Cir. 1969)).
III.
MAGISTRATE JUDGE FOSCHIO’S ORDER REQUIRING PLAINTIFF PAUL
CEGLIA PRODUCE ALL EMAIL ACCOUNTS HE HAS USED SINCE 2003 WAS
CONTRARY TO LAW
A. Magistrate Judge Foschio Erroneously Ordered Ceglia to Produce His Email Accounts
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.)
“A party may not seek discovery from any source before the parties have conferred as
required by Rule 26(f), except . . . when authorized . . . by court order.” F.R.C.P. 26(d)(1). In
this case, such expedited discovery is the only form of discovery available to Defendants because
the parties have not yet conferred pursuant to F.R.C.P. 26(f). As such, Defendants’ Crossmotion to Compel Discovery (Doc. No. 99) (Cross-motion) only could have been based on the
violation of Magistrate Judge Foschio’s July 1, 2011 Order Granting Expedited Discovery (Doc.
No. 83) (July 1 Order). See F.R.C.P. 37(a); Daval Steel Products, Div. of Francosteel Corp. v.
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M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir. 1991) (stating that only “clearly articulated order
of the court requiring specified discovery” permits sanctions for noncompliance).
It is beyond question that 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 the
July 1 Order. (See July 1 Order at 3, ordering para. 2) 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 concerning the Cross-motion on August
17, 2011, Magistrate Judge Foschio 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, and that was a new request which we raised.” (Id. at 60, ll. 20-21.) 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.) As such, Ceglia’s email
accounts are not subject to any existing expedited discovery.
Thus, 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.) The email accounts were not part of any
existing discovery order—the only means of discovery that could have formed the basis for
Defendants’ cross-motion to compel. As such, Defendants could not have argued with any merit
that Ceglia “fail[ed] to make . . . discovery”—a necessary prerequisite to their cross-motion. See
F.R.C.P. 37(a)(1). Therefore, Magistrate Judge Foschio acted contrary to law by even

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considering Defendants’ request to compel Ceglia to produce his email accounts, let alone order
Ceglia to produce them.
B. Even If the Court Construes Magistrate Judge Foschio’s August 18 Order as a Proper
Order for Additional Expedited Discovery, the Order Is Clearly Erroneous
A court may only grant expedited discovery when the requesting party shows good cause
and the request is reasonable. Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 326-27 (S.D.N.Y.
2005). Furthermore, expedited discovery must be “reasonably tailored to the specific issues that
will have to be determined.” Irish Lesbian & Gay Org. v. Giuliani, 918 F. Supp. 728, 731
(S.D.N.Y. 1996). In the context of a discovery dispute, the “clearly erroneous” standard requires
the district court to reverse a magistrate judge's order if it is an abuse of discretion. EEOC v. Mr.
Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y. 2004) (citing UPS of Am., Inc. v. Net, Inc., 222
F.R.D. 69, 71 (E.D.N.Y. 2004)).
Knowing that their request for Ceglia’s email accounts was outside the scope of the July
1 Order, Defendants slipped in a footnote requesting access to those accounts in their Crossmotion. (See Defendants’ Unredacted Memorandum of Law in Support of Their Cross-motion
to Compel at 10, n.2.) Unlike Defendants first Motion for Expedited Discovery (Doc. No. 44)
there was essentially no briefing on this critical issue. (Contra Docs. Nos. 44-82.) Furthermore,
at no point in their papers or on the record did Defendants ever offer a single scintilla of evidence
to support good cause for their request. In truth, the only thing upon which Magistrate Judge
Foschio relied in granting Defendants’ request was their counsel’s inadmissible, unsworn
representation that Ceglia had email accounts that “may well contain additional evidence of
fraud.” (Transcript at 61, ll.8-9.)

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Additionally, Defendants’ request was patently unreasonable because they made no
showing or argument as to why the content of Ceglia’s email accounts dating back to 2003 was
relevant or might lead to the discovery of admissible evidence. See F.R.C.P. 26(b)(1).
Nonetheless, Magistrate Judge Foschio’s August 18 Order requires Ceglia to give Defendants’
experts unfettered access to every email he has written since 2003. (See August 18 Order at 3, ¶
4.) The Court must consider that in today’s world, people commonly discuss their most private
and important matters by email. As such, allowing Defendants’ 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 but deep inside Ceglia’s private life. This is a view to which no one is
entitled and that is protected from government prying by the most sacred components of the
Constitution.
Furthermore, F.R.C.P. 26(b)(2)(C) requires the Court to deny certain discovery requests.
Here, “the discovery sought . . . can be obtained from some other source that is more convenient,
less burdensome, [and] less expensive,” i.e., a deposition of Ceglia. See F.R.C.P. 26(b)(2)(C)(i).
Additionally, the Court must assume that “the burden [and] expense of the proposed discovery
outweighs its likely benefit” because Defendants have made no showing that any benefit is likely
to result at all. F.R.C.P. 26(b)(2)(C)(iii). For all of these reasons, Magistrate Judge Foschio’s
order concerning Ceglia’s email accounts was an abuse of discretion.

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IV.
CONCLUSION
Based on the foregoing arguments, Plaintiff respectfully requests that the Court overrule
paragraph 5 of Magistrate Judge Foschio’s August 18 Order because it is contrary to law and
clearly erroneous. 1

Dated: September 1, 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]

1 At the very least, Ceglia should be given a proper opportunity to obtain protection from this discovery pursuant to
F.R.C.P. 26(d) because it undoubtedly will result in serious “annoyance, embarrassment, oppression, [and] undue
burden or expense.”

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