Ceglia v. Zuckerberg et al

Filing 189

MEMORANDUM OF LAW in Support of 188 Motion for Sanctions for Spoliation by Defendants by Paul D. Ceglia.(Boland, Dean) Modified on 11/2/2011 (DLC).

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 IN SUPPORT
OF MOTION FOR SANCTIONS
AGAINST DEFENDANTS
FACEBOOK AND ZUCKERBERG
FOR SPOLIATION OF
EVIDENCE

Defendants.

MEMORANDUM
RELEVANT FACTS AND EVIDENCE
The complaint in this matter was filed on June 30, 2010.

A scan of the

Facebook Contract was attached to the complaint. See. Doc. No. 1.
THE AUTHENTICITY OF THE FACEBOOK CONTRACT
HAS BEEN ESTABLISHED
There are a number of other tests that can be performed on The Facebook
Contract to confirm its authenticity. Plaintiff’s experts have performed nearly all
available tests.
1. Larry Stewart, a recognized expert in document examination, Stewart decl. at
¶1-10, tested the toner on both of the Facebook Contract to determine if they
match. Stewart decl. at ¶52-59. The toner on both pages of the Facebook
Contract match. Stewart decl. at ¶55.

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2. The toner on both pages of the Facebook Contract can be tested to determine
what make and model of printer was used to print the document. Stewart decl. at
¶56-59. The toner on the document was from one manufacturer of printers, HP.
Stewart decl. at ¶56. The HP 1100 printer was first sold to the public starting in
2001 and discontinued in 2005. Id. at ¶58. The HP 3200 series printer was first
sold to the public in 200 and discontinued in March of 2002. Id. at ¶59.
PAPER TESTING
Paper tests can be performed to confirm the consistency of the two pieces of
paper. Valery Aginsky confirmed that the two pieces of paper, page one and page
two of the Facebook Contract are identical. Doc. No. 66 at ¶8. He confirmed that
the ink used to compose interlineations on page one of the agreement was the same
ink used to date the Facebook Contract on page two. Id. at ¶9. Aginsky confirmed
Stewart’s analysis that the toner used on page one matches the toner used on page
two. Id. at ¶10.
James Blanco, another noted document examination expert, See Declaration
of James Blanco ¶1-6, confirmed the match of the two pages constituting the
Facebook Contract. Blanco decl. at ¶21(d).
James Blanco also examined the opacity, or visibility of light as seen through
the paper, and texture of pages one and two of the Facebook Contract. Id. at ¶21(e).
Both of those features as measured on each page, match, meaning page one and
page two are the same type of paper.

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The paper can be examined to see if the writing between the printed lines on
page one (interlineations as they are called) created matching indentations on page
two. Id. at ¶21(c). That test was performed by Mr. Blanco and the writing on page
one did indeed create the precise indentations observable on page two and they
match precisely the location of the writing on page one. Id. That necessarily means
that while the interlineations were being written as they appear on page one of the
Facebook Contract, page two of the Facebook Contract was directly underneath
page one. Id.
SIGNATURE COMPARISON OF ZUCKERBERG
The signature on page two of the Facebook Contract has been compared to
many known samples of Mark Zuckerberg’s signature taken from legal documents
in other cases. Id. at ¶21(a). The signature on the second page of the Facebook
Contract is authentic. Id. It is Mark Zuckerberg’s signature. Id.
Although not necessary now, the court nearly obtained a concession on this
point from Mr. Snyder: “I’m saying it may be [Defendant Zuckerberg’s signature on
page two of the Facebook Contract] in the sense that it appears to be Mr.
Zuckerberg’s signature, meaning to say it appears to be his signature or a very good
copy of his signature….” June 30, 2011 Transcript at 57.
The court then continued seeking clarification by asking Mr. Snyder, “are you
conceding that it is [Defendant Zuckerberg’s signature]?” Id. at 58. Mr. Snyder
responded this murky clarification: “I’m conceding that Mr. Zuckerberg recognizes

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that to appear to be his signature, or someone who copied what looks very much like
his signature.” Id.
STAPLE HOLE ANALYSIS
The Facebook Contract is a two page document whose pages were once
stapled together in the upper lefthand corner. Tests can be performed to examine
the staple holes in each page created by that stapling. Id. at ¶21(b). Mr. Blanco
confirmed that the staple holes on both pages align. Id. This establishes that the
two pages were together, page one on top of page two, when a staple was inserted to
each of them. Id. Mr. Stewart also analyzed the staple holes in page one and page
two of the document and confirmed there was “no reason to suggest a page one
substitution.” Stewart decl. at ¶50-51.
Overall, none of Mr. Blanco’s test results revealed evidence to suggest that
page one of the Facebook Contract had been substituted in for some other previous
page one. Id. at ¶22.
Images of the Facebook Contract were captured by the following persons
before it was provided to Facebook’s experts for evaluation:

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Paul Osborn captured multiple images of the Facebook Contract which have
been produced to Defendants. Declaration of Dean Boland at ¶5-8.
PAUL OSBORN IMAGES

Valery Aginsky captured multiple images of the Facebook Contract using
which were previously produced to Defendants. Boland decl. at ¶10-11.
VALERY AGINSKY IMAGES

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Kevin Cross captured multiple images of the Facebook Contract which were
previously produced to Defendants. Boland decl. at ¶13-15.
KEVIN CROSS IMAGES

In each set of documents, the appearance of the Facebook Contract is printed
matter and original signatures and writing on two white pieces of paper.
Paul Argentieri drove to Buffalo, New York on July 13, 2011, the day before
Facebook’s experts’ planned evaluation of the Facebook Contract and checked in at
the Embassy Suites in Buffalo on Delaware Avenue. Argentieri decl. at ¶3.
Argentieri had the Facebook Contract in a cardboard FEDEX envelope and a
separate six page document, a software specification document drafted by
Zuckerberg, in a separate FEDEX envelope. Argentieri decl. at ¶4. Sometime after
checking in at the hotel on July 13, 2011, Argentieri was introduced to the manager
of the hotel and an off-duty police officer present as part of a 24 hour guard duty for
the hotel safe. Argentieri decl. at ¶5. His best recollection is that on the morning of
July 14, 2011, counsel for Defendants and Argentieri arrived at the area where the
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hotel safe was located. Argentieri decl. at ¶6. Both parties’ counsel observed the
removal of the two documents from the safe still inside their envelopes. Argentieri
decl. at ¶7. A courier was hired who went with both counsel transporting the
envelope to the conference room of the law offices of Harris Beach in Buffalo, local
counsel for Defendants. Argentieri decl. at ¶8. A videographer was retained by
both parties to document the work of Facebook’s experts. Argentieri decl. at ¶9.
At 9:11 am on July 14, 2011, in view of the video camera, Argentieri then
opened the envelope displaying the documents to the camera and laying them on
the conference table in full view of everyone.

Argentieri observed the Facebook Contract as two pieces of white paper that
otherwise appeared to be some years old, consistent with the age of the document,
i.e. eight years. Argentieri decl. at ¶11. The video of this event shows the Facebook
Contract visible as two white pieces of paper just as Argentieri observed the
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Facebook Contract that morning. Argentieri decl. at ¶12 and video clip above.

As

the document was placed on the table, no one in the room remarked about the
condition of the document in any way. Argentieri decl. at ¶13. Therefore, at the
time the Facebook Contract was delivered to Facebook’s experts it was in the typical
condition one would expect of a document that was at that time eight years old. No
distinct yellowing was visible on the document. Argentieri decl. at ¶14.
That same routine began each day of the evaluation by Facebook’s experts on
July 15th, July 16th and July 19th. Argentieri decl. at ¶15. The sealed, signed
envelope stayed in the hotel safe under 24 hour armed each day from July 14th
through July 19th. Argentieri decl. at ¶16. At the end of each day, counsel for both
parties witnessed the insertion of the documents back into a new envelope which
was signed in permanent marker across the seal. Argentieri decl. at ¶17. Attorneys
for both counsel accompanied a courier returning the sealed, signed envelope to the
hotel safe where the armed guard was waiting. Argentieri decl. at ¶18.
At the end of fourth day of testing, on July 19, 2011, the Facebook Contract
and six page specification sheet were inserted into a new envelope which is sealed
and signed by Defense counsel and Argentieri. Exhibit A to Motion for Sanctions
for Spoliation by Defendants.
After July 19, 2011 Argentieri had possession and transported the Facebook
Contract and six page specification sheet in the sealed, signed envelope to Chicago.
Argentieri decl. at ¶20. The purpose of the envelope being taken to Chicago was so
that Plaintiff’s experts could obtain ink and paper samples for testing. Argentieri
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decl. at ¶21.
Argentieri produced on July 25, 2011, the same sealed and signed envelope as
is shown being opened at the law offices of Edelson and McQuire in Chicago.
Exhibit B to Motion for Sanctions for Spoliation by Defendants. Argentieri decl. at
¶26. The Facebook Contract is visible on that July 25, 2011 video alongside the six
page document specification sheet. Argentieri decl. at ¶23 and Exhibit B to Motion
for Sanctions for Spoliation by Defendants.
The Facebook Contract now shows obvious, distinct yellowing on the front of
each of the two pages of the document. Argentieri decl. at ¶24. Exhibit B to Motion
for Sanctions for Spoliation by Defendants. The yellowing evident on the front of
both pages of the Facebook Contract on July 25, 2011 is beyond the yellowing
apparent in the six page specification sheet.

Argentieri decl. at ¶25.

The now

evident yellowing on the front of each page of the Facebook Contract was not
present on it when it was first provided to Facebook’s experts on the morning of
July 14, 2011. Argentieri decl. at ¶26 and See video clip embedded in Motion for
Sanctions for Spoliation by Defendants.
Below are images of the Facebook Contract captured by Larry Stewart
reflecting its yellowed condition on July 25, 2011 after Facebook’s experts finished
their four days of testing and analysis. Stewart decl. at ¶19.

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LARRY STEWART IMAGES

Larry Stewart captured multiple images of the Facebook Contract which
were previously produced to Defendants. Boland decl. at ¶16-19.
THE BEFORE AND AFTER IMAGES OF THE FACEBOOK CONTRACT
Below is a comparison showing the discoloration appearing on the Facebook
Contract after Plaintiff’s experts received it back from Facebook’s experts.

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BEFORE FACEBOOK EXPERTS

AFTER FACEBOOK EXPERTS

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The yellowing now apparent on the Facebook Contract appears only on the
front side of page one and front side of page two. Coincidentally, these are the sides
of the Facebook Contract with the terms of the agreement, initials, interlineations
and signatures in ink. That is, this is the key side of both pieces of paper of the key
piece of evidence in this case.
WHEREFROM THE YELLOWING?
The only plausible explanation for the now yellow discoloration on the
Facebook Contract on the front of both pages is persistent exposure to UV light. As
has been shown, that excessive over-exposure to UV light occurred during
Facebook’s experts repetitive four days of testing of the Facebook Contract. Stewart
decl. at ¶15, ¶46 and See also Blanco decl. at ¶9, ¶11, ¶12, ¶14, ¶15 and ¶18.
REPETITIVE TESTING, LONG-TERM UV EXPOSURE
Facebook's experts tested the Facebook Contract from July 14, 2011 until
July 19, 2011 taking the intervening July 17th and July 18th off. Argentieri decl. at
¶16. Facebook’s experts repeatedly exposed the Facebook Contract to UV light as
well as other light sources. Blanco decl. at ¶9, Stewart decl. at ¶14. Stewart
remarked to plaintiff’s counsel at the time that the over-exposure of the Facebook
Contract to such intense UV light could damage the document. Id. at ¶15. The
Facebook Contract was repeatedly tested on the ESDA machine which required that
it be humidified and then subjected to intense lighting. Id. The document was
repeatedly placed into a “VSC” machine. Id. at ¶10. The VSC imaging system is
typically used to analyze and compare writing pen inks and other document
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features. Id. at ¶16. Facebook’s experts repeated the identical tests, one after the
other, for the four days of testing, performing far more testing than was needed to
make proper scientific determinations about the authenticity of the Facebook
Contract. Id. at ¶15. Mr. Blanco found the repeated exposure to UV light excessive.
Id. at ¶18. It is widely known by experts in the field that optical brighteners in
paper fade through exposure to UV light. Stewart decl. at ¶16. The recognized
primer and technical authority in the field of document examination, Wilson R.
Harris, wrote a manual discussing the damage to documents from excessive UV
light exposure. Id. at ¶20. He noted that “deep yellowing” and fading of ink will
occur with over-exposure to UV light. Id. Another study of this phenomenon found
that every one hour of UV irradiation of paper is equivalent to the natural aging of
a document by approximately 182 days. Id.
Mr. Blanco was so concerned about the excessive processing of the document
potentially damaging it that he asked Facebook’s experts how intense their UV light
setting was on the VSC machine they were using to expose the Contract’s pages to
UV light. Id. at ¶10. Facebook’s experts refused to disclose the settings on their
VSC machine.
METHODS OF YELLOWING A DOCUMENT
There are several methods by which a piece of paper like that which is page
one and page two of the Facebook Contract can become discolored. Stewart decl. at
¶36. Those methods include exposing a document to heat, chemicals or exposure to
intense UV light. Id. at ¶37. Every method, except exposure to UV light,
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necessarily discolors a document on both sides. Id. at ¶38. The use by Facebook’s
experts of the VSC4 machine required pages one and two of the document to be
placed on their back and then exposes to high intensity UV light. Id. at ¶44, 47, 48.
The yellowing now evident on the Facebook Contract is consistent with the
document being placed on its back during testing in which it was exposed to high
intensity UV light for excessively long periods of time. Id. at ¶39. The yellowing is
not consistent with damage from heat. Id. at ¶49.
TESTING CONFIRMS YELLOWING CAUSED BY FB EXPERTS
Mr. Blanco has in his lab a Foster machine that is in all material respects
identical to the one used by Facebook's experts. Blanco decl. at ¶10. Mr. Blanco
performed a tests on samples of paper. Id. at ¶19. He set the intensity of the UV
light to its lowest setting. Id. He then covered a piece of paper, comparable to the
paper in the Facebook Contract, with strips of opaque paper leaving lines of exposed
paper. Id. He then used the VSC machine to expose that test paper to an hour of
UV light at the lowest setting. Id. That one hour produced noticeable “tan lines” in
the document demonstrating that document damage of the type visible now in the
Facebook Contract can be caused by even one hour of exposure to UV light. Id.
The yellowing now evidence in the Facebook Contract is like the result of
repeated exposure of the document to high intensity UV light. Stewart decl. at ¶20.
Facebook’s experts repeating the same tests on the Facebook Contract constituted
“far more testing than would be needed to make proper scientific determinations
about the authenticity of the document.” Id. at ¶40.
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THE HARM CAUSED BY EXCESSIVE UV EXPOSURE
The yellowing caused by the repeated exposure to UV light in successive,
repetitive testing by Facebook’s experts has now prejudiced the Plaintiff in the
following ways:
1.

It has provided Defendants with an argument that the now discolored
document is a fraud because of the discoloration Facebook’s experts created;
and

2.

Without a sanction from this court prohibiting the argument, Defendants can
now argue that Ceglia caused the yellowing in some attempt to alter the
evidence in his favor which is contrary to the evidence as shown in this motion.

3.

It has provided Defendants with the argument that the Facebook Contract,
now yellow on one side and white on the other, establishes the document
cannot be trusted even if Defendants are not permitted to claim Ceglia caused
the yellowing; and

4.

Even with an order that neither party can comment about the document’s now
yellow appearance on the front side of each page, its very appearance places
doubt in the minds of jurors. Typical jurors would undoubtedly have seen,
used, relied upon and handled single or multi-page documents such as the
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Facebook Contract in the state it was in when Plaintiff’s counsel delivered to
Facebook’s experts for testing, i.e. white and appearing to be an eight year old
document. The jurors’ collective experience may well tell them that this
document, now yellowed on the front side only of each page for a reason they
may never be told by the court or parties, is not authentic, i.e. not appearing as
typical documents jurors are used to seeing in their everyday lives.
Without an order prohibiting these types of arguments, Defendants are able
to engage in a pernicious form of argument given the extensive testing already done
on the document confirming its authenticity. While the past transcripts in this case
are replete with argument by Defense counsel that the Facebook Contract is a fraud,
we now have scientific evidence that the Facebook Contract is authentic. We also
have scientific evidence that Facebook’s experts received a white two page
document, The Facebook Contract, and yellowed that document via excessively
exposing it to UV light and other light sources over four days of repeated tests.
LEGAL ANALYSIS
THE SPOLIATION RULE IN THE SECOND CIRCUIT
There is definitive guidance from the Second Circuit on the standard to apply
to spoliation claims. That case is Residential Funding Corporation v. DeGeorge
Financial Corp., 306 F.3d 99. In DeGeorge the court held “[T]he sanction of an
adverse inference may be appropriate in some cases involving the negligent
destruction of evidence because each party should bear the risk of its own
negligence.” Id. at 108.

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“[The] sanction [of an adverse inference] should be available even for the
negligent destruction of documents if that is necessary to further the remedial
purpose of the inference. It makes little difference to the party victimized by the
destruction of evidence whether that act was done willfully or negligently. The
adverse inference provides the necessary mechanism for restoring the evidentiary
balance. The inference is adverse to the destroyer not because of any finding of
moral culpability, but because the risk that the evidence would have been
detrimental rather than favorable should fall on the party responsible for its loss.”
Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y.1991). See
generally Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998) (stating that an
adverse inference instruction serves the remedial purpose, “insofar as possible, of
restoring the prejudiced party to the same position he would have been in absent
the wrongful destruction of evidence by the opposing party”).
Both the Federal Rules of Civil Procedure and this Court's inherent power
allow sanctions to be issued when a party destroys evidence that it could reasonably
foresee would be relevant to litigation. Jones v. Bremen High Sch. Dist. 228, No. 08C-3548, 2010 U.S. Dist. LEXIS 51312, at *14 (N.D. Ill. May 25, 2010). The
Defendants cannot sincerely argue that they could not foresee the Facebook
Contract would be “relevant to to the litigation.”
SANCTIONS
Once spoliation of evidence, especially the key evidence in this case, has been
established, appropriate sanctions for spoliation of evidence may include the issuing
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of a default judgment or an adverse jury instruction against the spoliating party.
Bryant v. Gardner, 587 F. Supp. 2d 951, 958 (N.D. Ill. 2008); Fed. R. Civ. P. 37(b)(2).
Default judgment may be entered against a spoliating party when there is "clear
and convincing evidence of willfulness, bad faith or fault by the noncomplying
party." Krumwiede v. Brighton Assocs., No. 05-C-3003, 2006 U.S. Dist. LEXIS
31669, at *25 (N.D. Ill. May 8, 2006).
A federal court may impose sanctions upon a party who engages in spoliation
in derogation of court order. See Fed.R.Civ.P. 37(b)(2); John B. Hull, Inc. v.
Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir.1988). However, this
court is empowered to impose sanctions absent a specific court order.
SPECIFIC DISCOVERY ORDER
NOT NECESSARY TO IMPOSE SANCTIONS
Even without a discovery order, the court “may impose sanctions for
spoliation, exercising its inherent power to control litigation.” Chambers v..
NASCO, Inc., 501 U.S. 32, 43–45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Sassower
v. Field, 973 F.2d 75, 80–81 (2d Cir.1992), cert. denied, 507 U.S. 1043, 113 S.Ct.
1879, 123 L.Ed.2d 497 (1993). The court's authority to impose sanctions will only be
reversed for abuse of discretion.
DISTRICT COURT HAS WIDE DISCRETION TO SANCTION PARTIES
Sanctions for spoliation, including dismissal, are reviewed by the Circuit for abuse
of discretion. Complaint of Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir.1997),

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cert. denied, 523 U.S. 1054, 118 S.Ct. 1380, 140 L.Ed.2d 526 (1998)); Sieck v. Russo,
869 F.2d 131, 134 (2d Cir.1989).
The Circuit “will reject the district court's factual findings in support of its
imposition of sanctions only if they are clearly erroneous.” Friends of Animals, Inc.
v. United States Surgical Corp., 131 F.3d 332, 334 (2d Cir.1997) (per curiam)).
The district court possesses “broad discretion in crafting a proper sanction for
spoliation” but such sanction is to “serve the prophylactic, punitive, and remedial
rationales underlying the spoliation doctrine.” Id.
PURPOSE OF THE SANCTIONS
The spoliation sanction is fashioned to: “(1) deter parties from engaging in
spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully
created the risk; and (3) restore ‘the prejudiced party to the same position he would
have been in absent the wrongful destruction of evidence by the opposing party.”
Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998)).
Here, as another spoliation motion filed simultaneous with this one reveals,
Facebook is engaged in a multi-pronged campaign resulting in damaged or
destroyed evidence. It acts with no concern for the authority of this court, flouting
the Plaintiff's rights, personally castigating him in the media, all the while
seemingly unconcerned with the paucity of its own evidence. The Facebook
Contract, the key evidence in the case, about which Defendants have repeated
questioned as to authenticity, now appears as if someone altered it - and that
someone is the Defendants.
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THE MOST SERIOUS SANCTION IS
NOT LIMITED TO A FINDING OF BAD FAITH
Although the facts demonstrate bad faith, purposeful over-exposure to UV by
Defendants’ experts, convincing the court of bad faith is unnecessary to obtain the
most severe sanction.
For Plaintiff's engaging in spoliation on par with Defendants in this case,
dismissal is not limited only to matters where the a Plaintiff has acted with bad
faith or willful intent, but is permitted where there is any fault of the sanctioned
party. See Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir.1990).
A default judgment in favor of Plaintiff is the corollary here to punish the
intentional spoliation of the Plaintiff's evidence.
Courts have held that negligent wrongs, like intentional wrongs, are proper
subjects for general deterrence. See Penthouse Int'l, Ltd. v. Playboy Enters., Inc.,
663 F.2d 371, 387 (2d Cir.1981) (citing G. Calabresi, The Cost of Accidents, 133–173
(1970)). Not only have negligent wrongs been found proper subjects for deterrence,
but federal courts have dismissed under Rule 37 as punishment for negligence. See
Thiele v. Oddy's Auto and Marine Inc., 906 F.Supp. 158, 162–63 (W.D.N.Y.1995)
(evidence negligently lost by plaintiff necessitated dismissal under Fed.R.Civ.P. 37);
Brancaccio v. Mitsubishi Motors Co., Inc., 1992 WL 189937, at *2 (S.D.N.Y.1992)
(plaintiff's negligent loss of the defective product, after her expert had examined it,
but where defendant had not, made necessary dismissal under Rule 37.
SPOLIATION BY EXPERTS IS APPLICABLE
TO PARTIES RETAINING THAT EXPERT
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Gross negligence by Defendant's experts is a sufficient act to impose a default
judgment against Defendants. “[G]ross professional incompetence no less than
deliberate tactical intransigence may be responsible for the interminable delays and
costs that plague modern complex law suits.” Penthouse, 663 F.2d at 387.
While the sanction of a directed verdict is a drastic remedy that should be
applied only when the spoliation was willful and there is no other adequate remedy
to restore the wronged party to the position it would be in if the evidence had not
been destroyed, this is an appropriate case to apply that sanction. Chambers v.
NASCO, 501 U.S. 32, 42–45, 111 S.Ct. 2123, 2131–2133 (1991); West v. Goodyear
Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999); Valentine v. Museum of Modern
Art, 29 F.3d 47, 49 (2d Cir.1994); John B. Hull Inc. v. Waterbury Petrol, Prods., Inc.,
845 F.2d 1172, 1176 (2d Cir.1988).
APPROPRIATE REMEDIES UNDER THE LAW FOR
FACEBOOK'S SPOLIATION
As a result of Facebook's intentional spoliation of the Facebook Contract, the
law entitles Plaintiff to a Default judgment against Facebook and the setting of a
trial date on damages. No hearing is necessary on this issue as a showing of bad
faith or intent, which is demonstrated by the evidence, because bad faith is not
required to be shown for Mr. Ceglia to obtain a default judgment as a sanction. If
the court is not persuaded of Defendants’ bad faith damage to the Facebook
Contract and finds Defendants’ negligence is also insufficient to sanction

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Defendants via default judgment, it can impose a range of other sanctions
including, but not limited to:
1. An order prohibiting Facebook or Zuckerberg from challenging the authenticity
of the Facebook Contract on any basis; or
2. An order prohibiting Facebook or Zuckerberg from challenging the authenticity
of the Facebook Contract based in any way on its now yellowed appearance; or
3. An instruction to the jury that the parties have stipulated that the yellow
appearance of the Facebook Contract is in no way an indication that the
document is not authentic and the jury should disregard it’s yellowed
appearance in making their determination about the Facebook Contract’s
authenticity; or
4. An order prohibiting Defendants from making a “page one substitution”
argument as they have throughout the hearings in this case; or
5. An adverse instruction to the jury that they should presume that Defendants
Facebook and Zuckerberg intentionally damaged Mr. Ceglia's Facebook Contract
because the undamaged Facebook Contract would tend to contradict their claim
that the Facebook Contract was not genuine; and
6. An order prohibiting Defendants from commenting in any way to the jury about
the yellowing that Facebook's experts caused to appear on the Facebook
Contract; and

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7. Attorney's Fees, Expert Witness Fees and any other relief the court deems
proper that was expended in investigating, preparing this motion and
conducting any scheduled hearing on the spoliation conduct of Facebook.

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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