Ceglia v. Zuckerberg et al

Filing 155

MEMORANDUM in Support re 154 Third MOTION to Compel and for Other Relief 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’ MEMORANDUM OF LAW IN SUPPORT OF THEIR THIRD
MOTION TO COMPEL AND FOR OTHER RELIEF

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]
October 14, 2011

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

TABLE OF CONTENTS
Page

INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 4
ARGUMENT .................................................................................................................................. 5
I.

THIS COURT SHOULD DIRECT CEGLIA TO COMPLY WITH THE
COURT’S DISCOVERY ORDERS. ...................................................................... 5
A.
B.

Ceglia Must Consent To The Inspection Of The Adelphia Email
Account. ...................................................................................................... 5

C.

Ceglia Must Identify And Produce The Electronic Copies And
Images Of The Purported Contract In The Possession Of His
Experts Valery Aginsky and John Paul Osborn. ......................................... 6

D.

Ceglia Must Produce Electronic Files In Their Native Format. ................. 8

E.

Ceglia Must Provide A Detailed Account Of The Items He Has
Lost Or Destroyed, Or That He Claims Do Not Exist. ............................. 10

F.

The Court Should Overrule Ceglia’s Grossly Improper “Privilege”
Designations. ............................................................................................. 12

G.
II.

Ceglia Must Identify And Produce His Removable Storage
Devices. ....................................................................................................... 5

The Court Should Order Disclosure Of Additional Webmail
Information ............................................................................................... 14

THE COURT SHOULD AWARD DEFENDANTS THEIR
REASONABLE ATTORNEYS’ FEES AND OTHER RELIEF. ........................ 15

CONCLUSION ............................................................................................................................. 16

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TABLE OF AUTHORITIES
Page(s)
Cases
Aguilar v. ICE,
255 F.R.D. 350 (S.D.N.Y. 2008) .............................................................................................. 9
United States v. Int’l Bhd. of Teamsters,
111 F.3d 210 (2d Cir. 1997).................................................................................................... 14
Victor Stanley, Inc. v. Creative Pipe, Inc.,
269 F.R.D. 497 (D. Md. 2010).................................................................................................. 9
Statutes
28 U.S.C. § 1746 ............................................................................................................................. 5
Other Authorities
Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,
8B FED. PRAC. & PROC. CIV. § 2219 (3d ed. 2011) .................................................................. 8
Rules
Fed. R. Civ. P. 37 ...................................................................................................................... 3, 15
W.D.N.Y. R. 7 ................................................................................................................................ 4

ii

MEMORANDUM OF LAW
Defendants Mark Zuckerberg and Facebook, Inc. respectfully submit this memorandum
of law in support of their third motion to compel compliance with this Court’s discovery orders
and for other relief.
INTRODUCTION
As his case collapses around him, Paul Ceglia and his lawyers continue to obstruct the
expedited discovery ordered by this Court on July 1. Indeed, in a set of extraordinary
declarations, Ceglia’s lawyers have now admitted under oath that their client has been instructing
them to disobey this Court’s discovery orders. See Declaration of Jeffrey A. Lake at ¶ 2 (Doc.
No. 153-1) (“Mr. Ceglia instructed me not to comply with” the Court’s August 18 Order);
Declaration of Nathan A. Shaman at ¶ 3 (Doc. No. 153-2) (“Mr. Ceglia continued to refuse to
comply with the August 18 Order.”).1 Ceglia’s bad faith tactics have also included submitting
false certifications, concealing documents he has specifically been ordered to produce, and
destroying removable USB storage devices containing critical evidence.
Ceglia’s misconduct has been aimed at covering up his fraud. But the limited expedited
discovery Defendants have obtained to date has already uncovered smoking-gun evidence that

1
On September 28, 2011, this Court ordered Ceglia to show cause why sanctions should
not be imposed for his “failure to fully and promptly” comply with the Court’s August 18
discovery order. Doc. No. 152. On October 7, Ceglia’s lawyers filed two sworn declarations in
which they accused their client of instructing them to disobey this Court’s discovery orders.
Doc. No. 153. Today, Defendants will file their response, which will demonstrate that severe
sanctions are warranted under Rule 37, and that Plaintiff's counsel may not hide behind Ceglia’s
brazen defiance of this Court. Indeed, the decision by Ceglia’s lawyers to turn on their client and
publicly accuse him of wrongdoing by disclosing their confidential communications with him —
as part of an effort to protect themselves and shift the blame to their client — raises serious
questions as to whether they have violated their professional duties and may continue to
represent Ceglia in this matter.

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the purported contract at the heart of this case is a fabrication — and that Ceglia compounded his
crime by manufacturing fake emails between himself and Zuckerberg. Discovery has also
uncovered the authentic contract — a contract that concerns the defunct StreetFax website and
has nothing to do with Facebook — embedded in the electronic data on Ceglia’s computer.
The Court has already granted Defendants’ two prior motions to compel and has directed
Ceglia to show cause why he should not be sanctioned for his defiance of court orders. This
third motion has been necessitated by Ceglia’s brazen refusal to produce several key categories
of documents that this Court directed him to do initially in its July 1 Order — and then again in
its August 18 Order, which directed Ceglia to cure his noncompliance with the July 1 Order.
Defendants respectfully ask this Court to order Ceglia to comply with six specific
discovery obligations:
First, this Court ordered Ceglia to identify and produce all removable storage devices in
his possession since June 30, 2010. See August 18 Order at ¶ 2(F). As the Court is well aware,
Ceglia concealed the existence of many of these devices — some of which he used to manipulate
key documents during the pendency of this lawsuit — and has now “lost” or destroyed this
evidence. Defendants have just uncovered another USB device recently used by Ceglia — one
that he neither identified nor produced. Defendants request an order compelling Ceglia to amend
his certification and produce this device forthwith.
Second, this Court ordered Ceglia to provide access to all email accounts that he has used
since 2003. See August 18 Order at ¶ 5; September 28 Order at ¶ 2. Ceglia still has not
complied. Specifically, he has not granted access to the Adelphia.net account that he used in
2004 to transmit the authentic contract. Defendants request an order compelling Ceglia to
provide the requisite consent immediately.

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Third, this Court ordered Ceglia to produce electronic copies or images of the purported
contract that are in the possession of his experts John Paul Osborn and Valery Aginsky. See
August 18 Order at ¶ 2. Ceglia has refused to comply. Defendants request an order approving
the issuance of subpoenas to Osborn and Aginsky for these documents and of targeted
interrogatories to the two experts.
Fourth, this Court ordered Ceglia to provide a detailed account of what happened to the
items he claims to have “lost” and his efforts to locate them. See August 18 Order at ¶ 2. Ceglia
has not provided such an account. Defendants request an order compelling a supplemental
declaration addressing these issues forthwith.
Fifth, this Court ordered Ceglia to produce all files in their “native format” — a format
that includes metadata. See August 18 Order at ¶ 3. Ceglia has refused to comply. Defendants
request an order compelling the immediate production of all files in their native format.
Sixth, Ceglia’s two privilege logs contain numerous, obviously improper privilege
designations. He has asserted plainly nonexistent “privileges” such as “relevance.” This Court
should overrule Ceglia’s designations in their entirety and direct him to produce all documents
listed on his privilege logs.
In addition to directing Ceglia’s immediate compliance with the Court’s orders, this
Court should order Ceglia to request his webmail providers to release to Stroz Friedberg all
account access logs, usage logs, and registration records, as well as any preserved copies of the
accounts, in order to verify the integrity of the email accounts to which Ceglia finally provided
access. To the extent required by the providers, this Court should grant Defendants permission
to subpoena the providers. The Court should also invoke its authority under Federal Rule of
Civil Procedure 37 and its inherent power, and award Defendants their reasonable attorneys’ fees

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and all other relief to which they may be entitled. There is no justification — let alone
“substantial” justification — for Ceglia’s knowing, intentional and obdurate refusal to comply
with repeated court orders, thereby leaving Defendants no choice but to seek relief from this
Court. See Fed. R. Civ. P. 37(a)(5) (court “must” award attorneys’ fees upon granting a motion
to compel, unless the opposing party’s nondisclosure was “substantially justified” or where a fee
award would be unjust).
BACKGROUND
On July 1, 2011, this Court granted Defendants’ Motion for Expedited Discovery. Doc.
No. 83. When Ceglia failed in large part to comply, Defendants moved to compel. This Court
granted Defendants’ motion and directed Ceglia’s compliance in its order dated August 18. Doc.
No. 117.
That order did little to change Ceglia’s lawless ways, as he continued to defy his
discovery obligations in key respects. Among other things, he refused to provide his consent to
the Stroz Friedberg firm accessing his email accounts, necessitating a second motion to compel.
This Court again directed Ceglia’s compliance, and ordered him to show cause why he should
not be sanctioned. Doc. No. 152.
In moving to compel Ceglia’s compliance with the webmail searches — a discrete
request as to which time was of the essence given Ceglia’s ongoing destruction of evidence —
Defendants noted their intent, once they had completed their review of Ceglia’s documents, to
file the instant motion addressing the many other remaining deficiencies in Ceglia’s production.
Doc. Nos. 129 n.1, 149 n.1.
Pursuant to Local Rule 7(d)(4), Defendants have described their attempts to resolve the
issues identified below in the supporting Declaration of Alexander H. Southwell.

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ARGUMENT
I.

THIS COURT SHOULD DIRECT CEGLIA TO COMPLY WITH THE COURT’S
DISCOVERY ORDERS.
As shown below, Ceglia’s discovery responses are manifestly deficient in six key areas.

Defendants request an order compelling the immediate production of the missing items. In
addition, Ceglia should be directed to furnish another supplemental declaration, as his August 29
declaration has now been revealed as false and incomplete in material respects. Notably, even
though Ceglia signed his August 29 declaration from his apparent hideout in Ireland, he carefully
omitted the statement — required under federal law, see 28 U.S.C. § 1746 — that his declaration
was made under penalty of perjury under the laws of the United States. That omission not only
renders his declaration immediately suspect, it violates the express terms of this Court’s order.
See August 18 Order at ¶ 1 (“Plaintiff shall provide a supplemental sworn declaration . . . in
accordance with 28 U.S.C. § 1746.”) (emphasis added).
A.

Ceglia Must Identify And Produce His Removable Storage Devices.

The August 18 Order required Ceglia to identify and produce all electronic media,
including all removable storage devices, in his possession, custody, or control since June 30,
2010. See August 18 Order at ¶ 2(F). Although Ceglia provided a declaration purporting to
identify all such devices, Defendants have now discovered that Ceglia has been concealing yet
another removable storage device that he has been recently using: a Seagate FreeAgent GoFlex
USB device, internal identifier NA056T98&0. See Declaration of Michael F. McGowan at 2527. Ceglia should be directed to amend his declaration and produce this device immediately.
B.

Ceglia Must Consent To The Inspection Of The Adelphia Email Account.

The August 18 Order directed Ceglia to “identify all email accounts accessible through
web-based interfaces that [he] has used since 2003, including but not limited to his gmail.com,

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msn.com, tmail.com, and Adelphia.net accounts,” and that he “consent to the acquisition and
inspection by Stroz Friedberg of the contents of all such accounts.” See August 18 Order at ¶ 5
(emphasis added); see also September 28 Order at ¶ 2.
Ceglia still has not consented to the inspection of the Adelphia account,
[e-mail]. This is the account from which he sent the two smoking-gun emails to Jim
Kole attaching the authentic contract in 2004. See McGowan Decl. at ¶ 29. Ceglia’s excuse is
that it was his parents, not he, who opened the account. Ex. A to Southwell Decl. (“August 29
Ceglia Decl.”) at ¶ 178-179. But this is not a valid ground on which to withhold the information:
Because Ceglia used the account to send highly relevant emails, he indisputably possesses the
account information, and this Court’s order encompasses all email accounts “that [he] has used
since 2003” regardless of whether the particular account was opened in his name or his parents’
name. See August 18 Order at ¶ 5 (emphasis added). Indeed, the August 18 Order specifically
directed that he consent to the inspection of the Adelphia account.
The Court should order Ceglia to immediately consent to the inspection by Stroz
Friedberg of the Adelphia account, and to indicate such consent on the form provided by Stroz
Friedberg, pursuant to the terms of the August 18 Order.
C.

Ceglia Must Identify And Produce The Electronic Copies And Images Of
The Purported Contract In The Possession Of His Experts Valery Aginsky
And John Paul Osborn.

The August 18 Order required Ceglia to identify and produce the scanned copies or
images of the purported contract taken by his experts. See August 18 Order at ¶ 2(B). This
evidence is critical because it will reveal the appearance of that document at the time Ceglia’s
experts initially examined and took pictures of it many months ago. Defendants’ forensic
examination of the purported contract indicates that Ceglia may have altered the document
between the time he initially provided it to his experts and the time he made it available for
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inspection to Defendants. Comparing the appearance of the document at these two moments in
time will establish that Ceglia — and possibly those working in concert with him — tampered
with the purported contract in furtherance of the fraudulent scheme. See August 17, 2011
Hearing Transcript at 106-108.
Ceglia has violated the August 18 Order by failing to produce images that are currently in
the possession of two of his experts: the forensic document examiner John Paul Osborn, and the
forensic ink chemist Valery Aginsky, both of whom have provided sworn expert declarations to
this Court. See Doc. Nos. 62, 66.
With regard to Osborn, Ceglia has produced no images from his files. Ceglia fails to
offer an explanation for his contemptuous defiance of his discovery obligation other than to
blithely assert that Osborn “has been unavailable to assist me in my efforts thus far.” See August
29 Ceglia Decl. at ¶ 37. This is not an acceptable response: Osborn is serving as Ceglia’s paid
expert in this case and should provide Ceglia with materials from his casefile at Ceglia’s request.
At a minimum, Ceglia should explain in a declaration why Osborn has suddenly become
“unavailable” and should describe his efforts to secure Osborn’s cooperation. Ceglia should not
be heard to argue that Osborn is refusing to cooperate because Ceglia is not paying his bills. Cf.
August 29 Ceglia Decl. at ¶ 30 (noting that Ceglia and his expert James Blanco are engaged in a
fee dispute over Ceglia’s failure to pay his bills). Defendants have stated on the record that they
will pay the cost of obtaining the scans from Osborn. See August 17, 2011 Hearing Transcript at
108.
Since Ceglia has refused to produce the images in Osborn’s possession, Defendants
respectfully request permission to subpoena Osborn for the images and scans in his possession
and to issue targeted interrogatories to Osborn regarding the same.

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With regard to Aginsky, Ceglia produced only two Photoshop (PSD) files, consisting of
page one and page two of the purported contract. But while Ceglia attributes these files to
Aginsky, it is not clear that these files actually came from Aginsky. First, the embedded
metadata contains no information identifying who created the files. See McGowan Decl. at ¶ 24.
Second, professional forensic document examiners like Aginsky typically take high-resolution
scans and photographs in a raw-image format, such as TIFF or JPEG. See Declaration of Gerald
M. LaPorte at ¶¶ 7-9. For that reason, the fact that Ceglia produced these images in Photoshop
format is highly suspicious and indicative of fraud, as Photoshop can be used to change colors or
alter the image with ease. See LaPorte Decl. at ¶ 12. Third, given the sheer number of highresolution digital images that the other experts in the case have taken, it is highly likely that these
are not the only images that Aginsky made of the purported contract.
Defendants therefore respectfully request permission to subpoena Aginsky for the images
and scans in his possession and to issue targeted interrogatories to Aginsky regarding the same.
In addition, if Ceglia continues to represent that these two Photoshop files are the only scans that
Aginsky took of the purported contract — and that Photoshop is their native format — this Court
should order Ceglia to provide a sworn statement by Aginsky certifying their authenticity, and
further certifying that these two files are in fact the only images in his possession.
D.

Ceglia Must Produce Electronic Files In Their Native Format.

The August 18 Order required that all electronic files be “produced in their native
format.” See August 18 Order at ¶ 3. A “native format” production includes the metadata
accompanying each file. As the leading treatise on federal procedure explains, “electronically
stored information with metadata and embedded data intact may be said to be in ‘native format.’”
Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, 8B FED. PRAC. & PROC. CIV.
§ 2219 (3d ed. 2011) (emphasis added). See also, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc.,
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269 F.R.D. 497, 511 (D. Md. 2010) (the production of electronically stored information “in its
native format would include metadata”); McGowan Decl. at ¶ 11 (native format includes
metadata).
Ceglia has failed to comply with the “native format” requirement because the documents
he produced did not include the accompanying metadata. Obtaining the metadata is critical to
determining, among other things, when the document was created or modified — and by whom.
As Judge Maas has explained: “Metadata, frequently referred to as ‘data about data,’ is
electronically-stored evidence that describes the history, tracking, or management of an
electronic document.” Aguilar v. ICE, 255 F.R.D. 350, 354 (S.D.N.Y. 2008). Metadata
“includes all of the contextual, processing, and use information needed to identify and certify the
scope, authenticity, and integrity of active or archival electronic information or records.” Id.
(quotation marks omitted). “[M]etadata is often crucial to understanding an electronic document.
For this reason, . . . embedded metadata is generally discoverable and should be produced as a
matter of course.” Id. at 355 (quotation marks omitted). Metadata is generally available in two
forms: “file system” metadata (which can record the date and time a file was created, modified,
and last accessed) and “embedded” metadata (which captures similar information within the file
itself). See McGowan Decl. at ¶¶ 6-10 (discussing different types of metadata).
Here, Ceglia was specifically ordered to produce the metadata through the requirement
that he produce all electronic files in their native format. He has refused to do so. In fact, none
of the files that he produced on August 29, 2011 were produced in complete native format
preserving all metadata. Ceglia’s chosen method of production — to package up all the
electronic documents as a ZIP file — failed to preserve any file system metadata. As for the
embedded metadata, some of it was updated by his attorneys prior to production, and — even

9

more disturbingly — some embedded metadata was completely removed in a manner that
suggests intentional and fraudulent manipulation and a willful disobedience of the Court’s order.
See McGowan Decl. at ¶ 18.
The missing metadata can be used to determine the files’ provenance, including whether
they are duplicates of documents Ceglia has already produced or whether they constitute new
documents. Id. at ¶ 15. For example, the law firm Edelson McGuire LLC apparently produced
the two TIFF files containing the authentic contract. These files look exactly like the authentic
contract that Stroz Friedberg discovered on Ceglia’s computer, attached to emails Ceglia sent to
Jim Kole in 2004. But the absence of metadata prevents Defendants’ experts from determining
whether the files produced by Edelson McGuire are the same files that Ceglia sent to Kole, or
whether they originated from a different source. Id. at ¶¶ 16-17.
This Court should direct Ceglia to comply with the order that he produce the documents
in native format — which includes both the file system metadata as well as the embedded
metadata within each file. It will not be difficult for Ceglia to comply with the Court’s order.
The McGowan Declaration explains the simple and well-recognized steps for producing
electronic documents in their native format. See McGowan Decl. at ¶ 14.
E.

Ceglia Must Provide A Detailed Account Of The Items He Has Lost Or
Destroyed, Or That He Claims Do Not Exist.

The August 18 Order directed Ceglia to produce three specific categories of items: the
forms he claims to have used to create the alleged contract (¶ 2(D)); certain specified removable
storage devices (¶ 2(E)); and all computers or electronic media that have been in his possession,
custody or control since June 30, 2010 (¶ 2(F)).
The order further provided that if Ceglia was unable to locate items within these three
categories, he must “describe in detail his good-faith efforts to conduct a diligent search” for

10

them. See ¶ 2. The description was to include “a detailed account of the non-existence, loss, or
destruction of each such item, including the approximate date on which each item was lost,
destroyed, or otherwise disposed of.” Id.
The entirety of Ceglia’s “detailed” description of the loss of each item, and his efforts at
retrieval, consists of a single sentence: “After a diligent search and a reasonable inquiry, I have
not been able to locate any responsive items in my possession, custody, or control.” See August
29 Ceglia Decl. at ¶¶ 130, 137, 144, 146, 149, 151, 183.
This is plainly insufficient. Ceglia has not made the slightest effort to comply with this
Court’s order that he provide “a detailed account of the non-existence, loss, or destruction of
each such item, including the approximate date on which each item was lost, destroyed, or
otherwise disposed of.” August 18 Order at ¶ 2 (emphases added). Indeed, his breezy onesentence non-response, repeated like a mantra throughout his declaration, is an affront to the
Court and strongly suggests that here too, he has specifically instructed his lawyers not to
comply with this Court’s orders. See Declaration of Jeffrey A. Lake at ¶ 2 (“Mr. Ceglia
instructed me not to comply with” the Court’s August 18 Order); Declaration of Nathan A.
Shaman at ¶ 3 (“Mr. Ceglia continued to refuse to comply with the August 18 Order.”).
Ceglia’s unsupported claim that he conducted a “diligent” search from Ireland should not
be tolerated. Indeed, the very reason this Court required Ceglia to explain the disappearance of
the highly relevant evidence and his search efforts was because he has been concealing and
destroying critical evidence — including pages of the contract at issue in this case — during the
pendency of this lawsuit. Permitting Ceglia to thumb his nose at the Court by providing a rote
one-sentence “description” of his search efforts will only reward him for his spoliation and

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misconduct. This Court should direct Ceglia to comply with this Court’s order by providing the
explanation required by Paragraph 2 of the August 18 Order.
F.

The Court Should Overrule Ceglia’s Grossly Improper “Privilege”
Designations.

Ceglia’s so-called “privilege logs” continue his pattern of concealment and obfuscation.
Ceglia has produced two privilege logs: one dated August 29 (attached as Exhibit B to
Southwell Declaration), and one dated October 11 (attached as Exhibit D to Southwell
Declaration). These logs purport to withhold a variety of documents for various reasons, most of
which do not constitute genuine privileges. This Court should overrule Ceglia’s frivolous
“privilege” designations and direct the immediate production of those documents.
1.

The August 29 Privilege Log.

First, Ceglia has improperly withheld certain scans taken by his experts on the basis of
the work-product doctrine. This Court has already expressly rejected Ceglia’s attempt to
withhold the scans on this basis. See August 17, 2011 Hearing Transcript at 119 (“I am also
ruling that the image of the original contract in the possession of Plaintiff’s expert is also within
the disclosure and the production requirement of the order . . . I’m overruling any objection that
this is expert work product . . .”).
Second, Ceglia improperly withholds 11 documents on the basis that they are
“Irrelevant/Outside Scope of August 18, 2011 Order/Trade Secret.” Ceglia’s claim that a
document is “irrelevant” or outside the scope of the order is not a recognized privilege.
Moreover, under the agreed-upon protocol for inspecting electronic documents, it is Stroz
Friedberg, not Ceglia’s lawyers, who determine which documents may be relevant. See
Electronic Asset Inspection Protocol, Doc. No. 85. Nor is a purported “trade secret” privilege a
basis for withholding a document. To the extent Ceglia believes a document contains a trade

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secret, his recourse is to designate the document as “confidential” under the agreed-upon
protective order, not to withhold it from production.
Third, although this Court directed Ceglia to produce “all electronic versions of any
emails or purported emails by and among Defendant Zuckerberg, Plaintiff and/or other persons
associated with StreetFax,” August 18 Order at ¶ 2(C), Ceglia improperly withholds eight
“scan[s] of printed email[s]” between Zuckerberg and a StreetFax employee. Ceglia claims these
emails are privileged on the basis of “Cumulative/Equally Available to Defendants.” This is not
a legally recognized privilege, and there is obviously no way to determine whether these emails
are duplicates until Defendants have seen the alleged emails. Moreover, given that Ceglia has
fabricated emails in this case and engaged in wide-ranging misconduct, it is cynical in the
extreme for him to claim that any purported email is “equally available to Defendants.” And
Ceglia can raise no claim of burden given that it is not Ceglia, but Stroz Friedberg, that would be
providing the eight emails to Defendants.
2.

The October 11 Privilege Log.

Ceglia’s October 11 privilege log withholds relevant documents found by Stroz Friedberg
in the course of the webmail search ordered by this Court — an order that Ceglia instructed his
lawyers to disobey. Stroz Friedberg identified 12 presumptively relevant documents in Ceglia’s
Gmail account. Ceglia is now withholding 11 of the 12 documents based on bogus claims of
“privilege.” This Court should overrule every one of his frivolous designations.
First, Ceglia withholds two documents — emails from Jessica Ceglia to Paul Ceglia —
on the basis of “attorney-client privilege.” This is untenable. Jessica Ceglia is not a lawyer, and
her possession of a document vitiates any attorney-client privilege that Paul Ceglia could even
arguably claim. As this Court explained in rejecting Ceglia’s prior effort to conceal evidence on

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the basis of improper attorney-client privilege designations, “the privilege requires that only
confidential communications with an attorney for the purpose of seeking legal advice or services
are within its scope.” Doc. No. 107 at 2 (citing United States v. Int’l Bhd. of Teamsters, 111 F.3d
210, 214 (2d Cir. 1997)). Moreover, “[t]he burden is on the party asserting the privilege to
demonstrate the requirements for the privilege have been satisfied,” Doc. No. 107 at 2, and
Ceglia has made no such showing here.
Second, Ceglia is withholding ten documents on the basis that they are “Outside Scope of
Expedited Discovery Orders.” As noted above, this is not a recognized privilege. Moreover, the
Electronic Asset Inspection Protocol — which the Court ordered — provides that it is Stroz
Friedberg, not Ceglia, that makes relevance determinations and that Ceglia can only attempt to
withhold documents on the basis of privilege. See Doc. No. 85.
G.

The Court Should Order Disclosure Of Additional Webmail Information.

Ceglia’s contumacious conduct related to his webmail accounts, including his repeated
instructions to his attorneys to disobey the Court’s orders and his well-documented history of
spoliation, raises serious concern that Ceglia has destroyed relevant emails in those accounts in
violation of his preservation obligations. That concern is amplified by the fact that once access
was finally provided, Stroz Friedberg located only two presumptively relevant emails with
attachments in the Gmail and MSN accounts. This near-total absence of relevant documents is
highly suspect. Even more disturbingly, Ceglia’s MSN account did not contain any of the
numerous emails that Ceglia has represented that he sent Mr. Zuckerberg from his MSN account.
In sum, Ceglia's repeated refusals to obey the Court's orders and obstructionism, his submission
of false declarations, the general absence of presumptively relevant documents, and the specific
absence of any emails from Ceglia to Zuckerberg in the MSN account, strongly suggest that
Ceglia recently deleted relevant emails from his webmail accounts.
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To ensure that Ceglia has not tampered with his email accounts by deleting emails during
or prior to his monthlong campaign of delay and obstruction, Defendants respectfully request the
Court order Ceglia to request the relevant webmail providers — Gmail, Microsoft, Tmail, and
Adelphia — to release all account access logs, usage logs, and registration records, as well as
any preserved copies of the accounts, to Stroz Friedberg pursuant to Plaintiff's consent and the
Electronic Asset Inspection Protocol. Defendants also request leave to issue any subpoenas the
providers may require for Stroz Friedberg to obtain this information. Months ago, Defendants
submitted preservation requests to some of these providers. Therefore, Stroz Friedberg could
simply compare the preserved accounts to the accounts Stroz Friedberg was finally permitted to
access after this Court put a halt to Ceglia’s obstruction.
II.

THE COURT SHOULD AWARD DEFENDANTS THEIR REASONABLE
ATTORNEYS’ FEES AND OTHER RELIEF.
This motion to compel has been necessitated by what has become Ceglia’s established

pattern of intentionally defying this Court’s discovery orders and forcing Defendants to litigate
every step of the way. Ceglia and his attorneys have clearly made a conscious choice that it is to
their strategic advantage to stonewall and obstruct rather than comply in good faith. Indeed, as
new evidence of Ceglia’s criminal fabrications continue to surface, he has ramped up his efforts
to conceal or destroy the evidence that remains. For all of these reasons, this Court should award
Defendants their reasonable attorneys’ fees and costs under Rule 37 or its inherent power. See
supra n.1.

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CONCLUSION
For the foregoing reasons, this Court should grant Defendants’ motion to compel, and
award Defendants all other relief, including attorneys’ fees, to which they may be entitled.

Dated:

New York, New York
October 14, 2011
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
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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