Ceglia v. Zuckerberg et al

Filing 149

REPLY to Response to Motion re 128 MOTION to Compel filed by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin)

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

DEFENDANTS’ REPLY IN SUPPORT OF
THEIR ACCELERATED MOTION TO COMPEL COMPLIANCE
WITH PARAGRAPH 5 OF THE AUGUST 18 ORDER

Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]
September 27, 2011

Orin Snyder
Alexander H. Southwell
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

REPLY
Ceglia asks this Court to dismiss Defendants’ motion to compel as moot. But it is not
moot: Ceglia still has not complied with Paragraph 5 of this Court’s August 18 order directing
him to provide — by August 29 — his consent to Stroz Friedberg searching his webmail
accounts.
Ceglia has now been in clear and brazen violation of this Court’s order for nearly one
month. During that time, he and his attorneys have delayed, stonewalled and simply refused to
comply with this Court’s directive. Indeed, even though Ceglia made three separate motions to
stay the order — all of which were denied — and even though Judge Arcara specifically warned
him that this Court’s order remained in “full force” while he unsuccessfully pursued a stay (Doc.
No. 119), Ceglia still has not submitted the consent forms.
Ceglia’s brief claims that the signed forms are purportedly “en route to Ceglia’s
attorneys” from Ireland, where Ceglia now resides. Opposition at 1. This is not sufficient.
Ceglia’s consent was due one month ago. He has no right to grant himself a further extension
while his forms find their way to the United States. The forms could have been emailed in PDF
format, or Ceglia could simply have sent them via express courier. See Declaration of Amanda
Aycock (identifying locations near Ceglia’s residence in Ireland that provide scanning and
expedited delivery services). Ceglia’s “the forms are in the mail” excuse continues his pattern of
contemptuous defiance of this Court’s orders. This Court should direct Ceglia to provide the
completed forms immediately. Time is of the essence given that Ceglia has already destroyed
critical electronic evidence — including six removable USB storage devices containing highly
relevant electronic files — during the pendency of this lawsuit.
Defendants’ motion to compel is not moot for an additional reason: Defendants have
asked to be awarded their reasonable fees and costs as authorized by Federal Rule of Civil
1

Procedure 37(a)(5). That rule expressly provides that such awards “must” be made when a
motion to compel is granted, unless the moving party failed to make good faith efforts to resolve
the dispute before filing the motion, or the opposing party’s nondisclosure was “substantially
justified.” Here, Defendants have made extensive and repeated good faith efforts to persuade
Ceglia to comply, see Southwell Decl., Ex. C to Defendants’ Motion to Compel, and there is
absolutely no justification for Ceglia’s outright defiance of this Court’s order. Indeed, Ceglia
provides no explanation for his refusal to comply; he offers no excuse for why he still has not
submitted the forms he was specifically ordered to produce one month ago; and there is no
justification — let alone the “substantial justification” required under Rule 37 — for his
obstructionist, bad faith, contemptuous misconduct.1

1
This motion to compel addresses only one deficiency in Ceglia’s August 29 production.
Defendants are completing their review of Ceglia’s production and anticipate filing a motion to
compel in the near future that addresses Ceglia’s additional discovery violations.

2

CONCLUSION
This Court should order Ceglia to immediately comply with Paragraph 5 of the Court’s
August 18 Order, and award Defendants their reasonable costs and fees.

Dated:

New York, New York
September 27, 2011
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]

Attorneys for Defendants Mark Zuckerberg and Facebook, Inc.

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