Ceglia v. Zuckerberg et al

Filing 176

RESPONSE in Opposition re 154 Third MOTION to Compel and for Other Relief filed by Paul D. Ceglia. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Boland, Dean)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,

Civil Action No. : 1:10-cv-00569-RJA

Plaintiff,
v.

PLAINTIFF’S RESPONSE TO
DEFENDANTS’ THIRD MOTION
TO COMPEL

MARK ELLIOT ZUCKERBERG, Individually, and
FACEBOOK, INC.
Defendants.

MEMORANDUM
The Facebook contract involved in this case is the subject of most of the
Defendants’ Third Motion to Compel.

Numerous witnesses and experts have

captured images of the Facebook contract from a time just before the complaint was
filed and throughout this matter. Experts for both sides have had the opportunity
to examine the Facebook contract.

Mr. Ceglia has provided reports from two

experts about their analysis of the Facebook contract. Facebook has provided zero
reports from their experts and no rebuttal to Mr. Ceglia’s two experts’ analysis.
THE UNAUTHENTICATED DIGITAL IMAGE APPEARS
Facebook’s Third Motion to Compel is also focused on unauthenticated digital
images of a two page document that Facebook claims to have “found” somewhere
during its computer analysis.

This unauthenticated digital image is more

commonly referred to in the media by Facebook’s counsel as the “smoking gun.”

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Well, it is now obvious, months after Facebook’s experts have evaluated it, that the
smoke has cleared, it is eerily quiet and that smoking gun is pointing the wrong
way for Facebook. The silence, as they say, is deafening.
DEFENDANTS‘ LAST MINUTE LACK OF SATISFACTION
Facebook’s Third Motion to Compel was a choice they made. They wrote a
letter to Mr. Ceglia’s counsel on late Friday October 7, 2011. They gave him until
Tuesday of the following week to respond in full. When he was unable to do so,
given the intervening weekend and the late Friday letter, they filed their Third
Motion to Compel.
Facebook’s repeated motions have, for the time being, diverted Plaintiff’s
energy to responding to an ever-widening list of demands. Mr. Ceglia has now filed
nearly 40 pages of declarations providing a breadth and depth of information that is
unusual for expedited discovery as this court has intimated. Facebook hears the
clock ticking and the repeated Motions to Compel, instead of working out their
issues with Plaintiffs without court intervention, mark a frantic search for
something, anything, about their unauthenticated digital image in order to
authenticate it, one would assume.
THE ENVIRONMENT SURROUNDING FACEBOOK’S “DISCOVERIES”
What this unauthenticated digital image is or is not, its contents, the veracity
of the tale of how Facebook’s experts “found” it are yet to be disclosed by Facebook.
Facebook has one of the foremost technology teams on the planet.
public declarations, it has 30,000 servers under its control.
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As of its last

“Today we have

somewhere in the neighborhood of 30,000 servers.” That number comes  from Jeff
Rothschild, the vice president of technology at Facebook, who discussed the
company’s infrastructure in a presentation at UC San Diego in October 2009.
Rothschild said during the Q&A session following his talk, that the number ”will be
different today than it was yesterday” because  Facebook is adding capacity on a
daily basis.
With access to the personal data, friend lists, likes, photos, messages and
opinions of more than 500 million people and counting, a behemoth spidering server
farm under Facebook and Mr. Zuckerberg’s control, one can be excused for being
wary about the authenticity of information flowing from such a source into this
case. Diversion is the strategy of triviality perfectly designed to build tigers out of
paper.

Facebook’s ethic, it’s very motto, spray painted inside its world

headquarters, glorifies hacking.

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As the court may well know, hacking is a pejorative term defining the
unauthorized access to a computer system.

Mr. Zuckerberg acknowledges being

punished at Harvard University for hacking Harvard’s servers.

http://

www.cbsnews.com/video/watch/?id=3697403n.
Facebook hosts, promotes and bestows awards on the best hackers in its
annual Facebook Hacker Cup. On the Facebook page for this hacking celebration, it
is billed as “an annual worldwide programming competition where hackers compete
against each other for fame, fortune, glory and a shot at the coveted Hacker Cup.”
http://www.facebook.com/hackercup.
An unrepentant hacker, glorifying hacking, sitting atop one of the world’s
largest server farms stocked with the personal data of more than 500 million people
is something Mr. Ceglia would be foolish to ignore. Plaintiff evaluates Facebook’s
participation in this case aware of that underlying philosophy coupled with its
unparalleled capability.

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PLAINTIFF’S FIRST SUPPLEMENTAL DECLARATION
On August 29, 2011, Plaintiff submitted a 30 page supplemental declaration
to Defendants. Exhibit A. The creation of this declaration consumed more than 100
hours of attorney time and Plaintiff’s own time to prepare it. This time estimate
does not include Plaintiff’s time spent exhaustively searching, at Defendants’
request, to confirm no other electronic storage devices were in Plaintiff’s possession,
custody or control. Exhibit C at ¶7(a)-(k).
Following receipt of that supplemental declaration, Defendants, gave
Plaintiffs approximately 1½ working days to respond to satisfy their demands,
presuming Plaintiff nor Plaintiff’s counsel had any personal or professional
weekend plans besides responding to Defendant’s late Friday demands. Exhibit B.
By the following Friday, Defendants filed their Third Motion to Compel
listing six items and additional requests relating to Plaintiff’s supplemental
declaration.
PLAINTIFF’S PROVIDE SECOND SUPPLEMENTAL DECLARATION
In response to Facebooks’ counsel’s multi page demand list, and its Third
Motion to Compel, Plaintiff has submitted a second supplemental declaration to
Defendants just today. Exhibit C. Whether the items requested or tasks requested
of Plaintiff were beyond the court’s order, Plaintiff has still responded completely to
Defendants except for a single document that is under review by this court on
Plaintiff’s good faith assertion of attorney client privilege. Id.
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Along with the submission of the second supplemental declaration, Plaintiff’s
Gmail https://mail.google.com/mail/?ui=2&ik=b614a0d4c7&v...
counsel hasMr. Ceglia's second supplemental declaration is...
corresponded with Mr. Snyder, et al. asking for Defendants to list any

additional items or concerns about this second supplemental declaration.
Dean Boland <[e-mail]>

Mr. Ceglia's second supplemental declaration is attached
1 message
Dean Boland <[e-mail]>
Mon, Oct 24, 2011 at 10:05 PM
To: "Aycock, Amanda M." <[e-mail]>
Cc: "[e-mail]" <[e-mail]>, "[e-mail]" <[e-mail]>,
"Nathan Shaman Esq. ([e-mail])" <[e-mail]>, "Snyder, Orin"
<[e-mail]>, "Southwell, Alexander" <[e-mail]>, "Dupree Jr., Thomas"
<[e-mail]>, "Benjamin, Matthew J." <[e-mail]>
Bcc: Paul Ceglia <[e-mail]>
See attached.
Mr. Snyder:
After reading this declaration, if there is anything additional that you feel Mr. Ceglia is required to provide to
you per the court's order, please advise promptly and we will work diligently to provide whatever it is you seek
that is not privileged.
As of today, I have been counsel for Mr. Ceglia for four days. I believe our rapid response given that fact has
been remarkable and a credit to a load of work by my client and other counsel on his behalf.
I look forward to addressing any concerns you have to avoid us having any substantive issues to argue with
the court on November 2, 2011 which I can only assume would be good news for the judge.
Dean Boland.
On Mon, Oct 24, 2011 at 9:51 AM, Aycock, Amanda M. <[e-mail]> wrote:

PlaintiffMr. Boland,
counsel’s goal, as summarized in that correspondence, is to “not
burden the court with motion practice” as Mr. Snyder stated was also his goal
Please find attached correspondence from Orin Snyder.

during the June 30, 2011 hearing. Transcript of June 30, 2011 hearing at p. 126.
Regards,

In that sense, both parties are now working cooperatively to address any lingering
Amanda

issues Defendants M. Aycock with these two supplemental declarations by Plaintiff.
Amanda have
GIBSON DUNN

Defendant has not indicated any prejudice to Facebook or Mr. Zuckerberg at this
Gibson, Dunn & Crutcher LLP

point and given Mr. Ceglia’s voluminous responses, it is anticipated that no
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10/24/11 10:06 PM

prejudice will occur from this point forward either.
Plaintiff’s counsel and defense counsel have established a good working
relationship with at least one phone call and several email exchanges in the short

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time that Plaintiff’s current counsel has been involved in this matter. I fully expect
that cooperation to continue.
Finally, Mr. Ceglia and his counsel will continue to abide by the protective
order restricting public comment on the results of the experts’ testing of the
Facebook contract to date.

Mr. Ceglia has no interest in trying his case in the

media. He has a contract. He has a case. No smoke needed.
CONCLUSION
For the foregoing reasons, Mr. Ceglia respectfully requests this court deny
the Defendants’ Third Motion to Compel and award Plaintiff’s all other relief,
including attorneys’ fees, to which they may be entitled.

Respectfully submitted,
/s/Dean Boland
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
607-324-3232 phone
607-324-6188
[e-mail]

Dean Boland
18123 Sloane Avenue
Lakewood, Ohio 44107
216-236-8080 phone
866-455-1267 fax
[e-mail]

CERTIFICATE OF SERVICE
A copy of the foregoing shall be served on October 24, 2011 on all parties by
operation of the court’s electronic case filing system.

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/s/ Dean Boland_________________
Dean Boland

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