Ceglia v. Zuckerberg et al

Filing 153

REPLY/RESPONSE to re 152 Order on Motion to Compel filed by Paul D. Ceglia. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Exhibit A, # 4 Exhibit B, # 5 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 OPPOSITION
TO THE ISSUANCE OF SANCTIONS
I.
CEGLIA SHOULD NOT PAY FOR DEFENDANTS’ MISDEEDS
F.R.C.P. 37(a) provides,
If the motion [to compel] is granted . . . the court must, after giving an opportunity
to be heard, require the party or deponent whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to pay the movant's reasonable
expenses incurred in making the motion, including attorney's fees. But the court
must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially
justified; or
(iii) other circumstances make an award of expenses unjust.
(Emphasis added). The Advisory Committee determined that an award of expenses would
be unjust “where the prevailing party also acted unjustifiably.” F.R.C.P. 37 advisory
committee’s note (1970).
As discussed in more detail in Plaintiff’s Motion to Set Delayed Briefing Schedule (Doc.
No. 134) and the documents that accompanied it, Defendants blatantly violated Ceglia’s privacy,
this Court’s orders, and applicable state and federal law by disclosing Ceglia’s email accounts

and passwords to the public. No award of damages to Ceglia or any other sanction against
Defendants will ever be able to undue this irreparable harm. Eventually, Ceglia will ask this
Court to repair some of the integrity lost to the legal system by preventing Defendants from
relying on any of the emails. However, for now the Court can at least refuse to award expenses to
Defendants for bringing the very motion that resulted in the violations of Ceglia’s privacy.
Hopefully, such a decision will deter Defendants from future malicious conduct like what has
happened here with Ceglia’s email accounts and in the past when Defendants “accidentally”
published redacted material and discussed protected material in violation of the Joint Stipulated
Protective Order. (See Doc. No. 95.)
II.
CEGLIA’S ATTORNEYS SHOULD NOT BE SANCTIONED BECAUSE THEY
PLAYED NO PART IN VIOLATING THE COURT’S ORDER
Ceglia originally complied with the Order by providing his email accounts and
passwords to Stroz Friedberg on August 29, 2011 as required by the August 18 Order.
(Declaration of Nathan Shaman 2, ¶ 4.) However, Defendants and Stroz Friedberg
rendered that information useless when they violated Ceglia’s privacy. Absent their
misconduct, Stroz Friedberg would have had access to Ceglia’s email accounts
immediately upon Judge Arcara’s Order overruling Ceglia’s objections (Doc. No. 145).
However, Ceglia was forced to execute and deliver new consent forms with his recently
changed passwords. (Shaman Decl. 2-3, ¶¶ 10-12.) Therefore, a substantial portion of the
delay was a result of Defendants’ unsavory and inexcusable tactics.
Both of the attorneys with the primary responsibility for assisting Ceglia in
complying with the Court’s August 18, 2011 Order (Doc. No. 117) (August 18 Order)

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repeatedly contacted Ceglia throughout August and September to remind him of his
continuing obligations to comply with the August 18 Order. (See Declaration of Jeffrey
A. Lake & Shaman Decl.) Initially, Ceglia refused to comply with the August 18 Order.
(Lake Decl. 1, ¶ 2.) As such, Ceglia’s attorneys moved to stay the August 18 Order (Doc.
No. 118) pending objections, but Judge Arcara denied the request. (Shaman Decl. 1, ¶ 3.)
However, Ceglia eventually agreed to turn over his information on the condition that
Stroz Friedberg would not have access until Judge Arcara ruled on the forthcoming
objections. (Lake Decl. 1-2, ¶ 4.) Therefore, Ceglia complied as required on August 29,
2011. (Shaman Decl. 2, ¶ 4.) However, pursuant to Ceglia’s wishes, that same day,
Ceglia’s attorneys again moved to stay the August 18 Order (Doc. No. 126). (Id. 2, ¶ 5.)
The motion was denied. (Id.)
After Judge Arcara overruled Ceglia’s objections (Doc. No. 145), Ceglia’s
attorneys asked him to turn over his email accounts along with his new passwords, on the
forms provided by Stroz Friedberg. (Id. 2, ¶¶ 7-11.) Ceglia sent out the forms via DHL
Express on September 23, 2011. (Id. 3, ¶ 12.) Immediately after receiving them on
September 28, 2011, Ceglia’s attorneys emailed copies of the consent forms and mailed
the original consent forms to Stroz Friedberg. (Id. 3, ¶ 13.)

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III.
CONCLUSION
For the foregoing reasons, Plaintiff Paul D. Ceglia respectfully requests that the
Court refuse to award attorney’s fees to Defendants because of their misconduct and his
efforts to comply with the August 18 Order.

Dated: October 7, 2011
Respectfully submitted,
s/ Jeffrey A. Lake
Attorney for Plaintiff
11650 Iberia Place, Suite 216
San Diego, CA 92128
[phone]
[e-mail]

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

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