Ceglia v. Zuckerberg et al

Filing 177

MEMORANDUM in Opposition re 154 Third MOTION to Compel and for Other Relief regarding assertion of privilege filed by Paul D. Ceglia. (Boland, Dean)

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

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

Plaintiff,
v.
MARK ELLIOT ZUCKERBERG, Individually, and
FACEBOOK, INC.

MEMORANDUM SUBMITTED
DIRECTLY TO THE COURT
REGARDING AUTHORITY FOR
PRIVILEGE CLAIMS AS TO TWO
DOCUMENTS IN EXPEDITED
DISCOVERY

Defendants.

MEMORANDUM
In response to an order of this court, Doc. No. 167, two documents were
submitted to the court for in camera review.
A file named Lawsuit_Overview.pdf was provided to the court directly via
email for in camera review. This is the document listed on the fourth page of the
privilege log, Doc. No. 156-2 as “Portion of Lawsuit Overview.” Apparently, prior
counsel may have acknowledged that the items on page six to page sixty-three of
that document are not subject to any recognized privilege.

That recognition

resulted in prior counsel describing this document as “Portion of Lawsuit Review.”
In addition, a scrivener’s error in preparing Mr. Ceglia’s second supplemental
declaration, Exhibit A to Doc. No. 176 identified this document as “Partial Lawsuit
Overview.”

All three descriptions are indicating the same document which the

court was provided via email as noted above. Opposing counsel has been informed

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that pages six to sixty-three of this document will be disclosed to them immediately.
A second file named DSC01008.JPG was also provided to the court yesterday
via email for in camera review. That file is designated as item 329 on page 3 of Doc.
No. 156-4.

That item is an attachment to an email that was sent from Jessica

Ceglia, a non lawyer, to Paul Ceglia.
LEGAL ANALYSIS AS TO FILE NAMED LAWSUIT_OVERVIEW.PDF
Attorney–client privilege attaches to a prospective client’s communications
with prospective counsel. See New York Rules of Professional Conduct, R. 1.18.
The courts in New York generally refer to attorney–client privilege as a
fiduciary relationship. See generally, Rose Ocko Foundation, Inc. v. Liebovitz, 155
A.D.2d 426 (2d Dep’t 1989). The Second Department has said, “fiduciary
relationships existing between lawyer and client extends to preliminary
consultation by a prospective client with a view toward retention of the lawyer,
although actual employment does not exist.” Seeley v. Seeley, 129 A.D.2d 625, 627
(2d Dep’t 1987) (quoting Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d
1311, 1319 (7th Cir. 1978)). Courts are quick to sever any relationship that hints at
impropriety because it may divulge information that is protected by the attorney–
client privilege that arose from the prospective-client meeting.
In Burton v. Burton, 139 A.D.2d 554 (2d Dep’t 1988), the defendant husband
had consulted the same law firm the plaintiff wife would later hire to represent her
in their divorce. The court noted that no evidentiary hearing was needed to
determine what was or was not covered in the firm’s meeting with the defendant
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husband—it did not even matter if the grounds for divorce were not discussed. This
is because a prospective client enjoys the same attorney–client privilege a client
does; and so because “it is reasonable to infer that [the firm] obtained confidential
or strategically valuable information, . . . it makes no difference that the defendant
did not retain the firm.” Id. at 554–54. In other words, when a firm may not reveal
a client’s communications, it must not reveal a prospective client’s.
LEGAL ANALYSIS AS TO FILE NAMED DSC01008.JPG
This document is an image of an email sent by Paul Ceglia to an attorney
seeking legal advice. Therefore, the communication itself is privileged, attorneyclient communication. However, the legal question is whether the attaching of the
image of this communication to an email by a non-lawyer and transmission of that
email attachment to Mr. Ceglia by Jessica Ceglia waives that privilege.
There is no evidence to suggest that Jessica Ceglia was authorized to send
this document as an attachment in that email. There is no evidence to suggest that
Jessica Ceglia viewed the contents of this attachment or any other attachment to
that email before sending it. Finally, even if it were shown at a hearing that Jessica
was authorized to send the attachment and did, in fact, review the attachment
before sending it, privilege still applies to the attorney-client communication
contained in the attachment.
The general rule is communications between an attorney and client in the
presence of a third party are not privileged. But it is well-settled law in New York
that communications made through an agent of either the attorney or client retains
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their privilege. People v. Osorio, 75 N.Y.2d 80, 84 (1989). The New York Court of
Appeals clarified this 50,000-foot level view: “[t]he scope of the privilege is not
defined by the third parties’ employment or function, however; it depends on
whether the client has a reasonable expectation of confidentiality under the
circumstances.” Id. So, if an agent is used to facilitate communication, the parties
“had every expectation that any communication between them and their counsel
would remain confidential,” and the communications therefore are privileged.
Robert V. Straus Productions, Inc. v. Pollard, 289 A.D.2d 130, 130 (1st Dep’t 2001);
see also United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) (Friendly, J.) (because
accountants and interpreters make communication between parties possible, their
presence does not waive privilege). A party does not even need to allege that the
third-party is an agent—the court may determine an agency relationship on its own
from the record. See First Am. Commercial Bancorp, Inc. v. Saatchi & Saatchi
Rowland, Inc., 56 A.D.3d 1137, 1139 (4th Dep’t 2008).
Mr. Ceglia has a reasonable expectation of privacy when requesting that an
agent send to him attachments including those that contain confidential
communication between himself and his attorney.
CONCLUSION
For the foregoing reasons, Mr. Ceglia respectfully requests this court find
that the the first six pages of the file named Lawsuit_Overview.pdf submitted to it
for in camera review are not subject to disclosure to Defendants and are protected
by attorney-client privilege. Finally, Mr. Ceglia respectfully requests this court find
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that the file named DSC01008.JPG submitted to it for in camera review is not
subject to disclosure to Defendants and is protected by attorney-client privilege.

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]

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CERTIFICATE OF SERVICE
A copy of the foregoing was served on Defendants via email on October 26,
2011 by counsel for Plaintiff, Dean Boland.

/s/ Dean Boland_________________
Dean Boland

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