Ceglia v. Zuckerberg et al

Filing 134

MOTION for Extension of Time to File Response/Reply as to 128 MOTION to Compel by Paul D. Ceglia. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Jeffrey A. Lake, # 3 Affidavit of Paul A. Argentieri, # 4 Affidavit of Nathan A. Shaman, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C)(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 SET DELAYED BRIEFING SCHEDULE
The Court may, in its discretion, establish a delayed briefing schedule. L.R. Civ. P.
7(b)(1).
Several factors militate strongly in favor of a delayed briefing schedule for Defendants’
Accelerated Motion to Compel Compliance with Paragraph 5 of the August 18 Order (Doc. No.
128) (Motion to Compel). First of all, Plaintiff’s Objections to the Court’s August 18, 2011
Order (Doc. No. 131) (Objections) are now properly before District Judge Arcara. As such,
District Judge Arcara’s rulings may render Defendants’ Motion to Compel moot, and the most
efficient use of judicial resources would result from setting the deadline for opposition and reply
to a time after District Judge Arcara makes his rulings.
Additionally, Defendants are in no position to complain about this request. At the initial
hearing concerning this expedited discovery, Ceglia’s counsel raised serious concerns about the
use of Defendants’ expert, Stroz Friedberg, for inspection of the electronic assets rather than a
neutral expert. Now, Stroz Friedberg has violated this Court’s Electronic Asset Inspection
Protocol (Doc. No. 85) (EAIP), this Court’s August 18, 2011 Order (Doc. No. 117) (August 18

Order), and state and federal law by transmitting to Defendants’ counsel copies of Ceglia’s
Consent Forms containing all the information necessary to access Ceglia’s email accounts. (See
Declaration of Nathan A. Shaman, dated September 2, 2011 at ¶¶ 2-3 & Exhibit A.)
What is worse, Defendants’ counsel also violated the EAIP, the August 18 Order, and
state and federal law by attaching as exhibits the Consent Forms to the Declaration of Alexander
H. Southwell, dated September 1, 2011 (Doc. No. 130), which was filed that night at 10:09 p.m.
EST. (See id. at ¶ 4 & Exhibit B.) According to the Clerk of Court, Defendants’ counsel had the
document removed at 7:40 a.m. EST on September 2, 2011. (See id. at ¶ 6.) Rather than accept
responsibility for this egregious and massive violation of Ceglia’s privacy, Defendants’ counsel
blamed Ceglia’s counsel because they “didn’t designate [Ceglia’s] consents as confidential in
any way.” (See id. at Exhibit B.)
When Ceglia’s counsel learned of Defendants’ misconduct at approximately 10:00 a.m.
EST, 7:00 a.m. local time, they immediately notified Ceglia by email so he could change his
passwords. (See id. at Exhibit C.)1 Ceglia’s counsel also notified Ceglia of this issue by text
message at approximately 10:35 a.m. EST, and Ceglia responded back at approximately 11:00
a.m. EST that he had changed his passwords. (See Declaration of Paul A. Argentieri, dated
September 2, 2011.) Thus, Defendants’ counsel’s baffling misconduct resulted in Ceglia’s email
accounts being accessible to the world for 12 hours. However, the most troubling issue of all is

1 Although Defendants’ attorney Alexander Southwell called Ceglia’s attorney Jeffrey Lake and left him a
voicemail at approximately 11:30 p.m. EST, Mr. Lake could not understand the voicemail and was unavailable to
address the issue because he was grieving with his family at the wake for his wife’s late uncle. (See Declaration of
Jeffrey A. Lake, dated September 2, 2011.) Additionally, at the time it was 4:30 a.m. in Ireland, where Ceglia now
resides.

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that Defendants Facebook and Mark Zuckerberg had complete access to Ceglia’s email accounts
for that same period of time.
Of course, Defendants’ counsel has engaged in such conduct in the past: they allegedly
accidentally published redacted material in violation of the Joint Stipulated Protective Order
(Doc. No. 86) on August 4, 2011. (See Doc. No. 95.) Therefore, it is hard to believe that
Defendants’ current conduct was anything other than a calculated and deliberate attempt to
subvert the judicial process and invade Ceglia’s privacy.
Given these considerations, Ceglia will move this Court for attorney’s fees and other
sanctions at a later date. However, it is most important that District Judge Arcara be given an
opportunity to rule on Ceglia’s Objections. Therefore, Plaintiff Paul Ceglia respectfully requests
that the Court set a delayed briefing schedule for Defendants’ Motion to Compel.

Dated: September 2, 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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