Ceglia v. Zuckerberg et al

Filing 209

DECLARATION signed by Larry Stewart re 188 MOTION for Sanctions Notice of Motion for Sanctions for Spoliation of Evidence by Defendants filed by Paul D. Ceglia Corrected Declaration. (Attachments: # 1 Certificate of Service)(Boland, Dean)

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

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

Plaintiff,

NNCI.ARATION
OF'T.ARRY F. STF'W{RT IN
SUPPORT OF'MOTION FOR

v.

^SANCTIONS AGAINST
NFFENNANTS F'OR SPOLIATION

MARK ELLIOT ZUCKERBERG, Individually, and
FACEBOOK, II\TC.

OF'ITVINFNCIN

Defendants.

LARRY F. STEWART submits this declaration

in

support of Plaintiffs

Motion for Sanctions against Defendants for Spoliation of Evidence and hereby
declare under penalty of perjury and pursuant to 28 U.S.C. 1746 that the following
is true and correct:

1.

I, Larry F. Stewart, make this declaration upon personal knowledge.

2. I am a retained expert for Paul D. Ceglia in the above captioned case.
3. I

am presently Chief Forensic Scientist and President of Stewart Forensic

Consultants, LLC, San Luis Obispo, California and Washington, DC.
4.

My education includes an Associate of Arts Degree from Florida Technological
University Orlando, Florida in L976, a Bachelor of Science in Forensic Science
Degree from

the University of Central Florida in L979, and a Master of

Forensic Sciences Degree from Antioch lJniversity received in June of 1983.
5.

I have received numerous specialised training

courses

in the forensic sciences

from L976 through the present from such institutions as McCrone Research
Institute, Virginia Polytechnic Institute and State University, U.S. Air Force
Office of Special Investigations, U.S. Justice Department, F.B.I. Quantico, U.S.
Secret Service, Perkin-Elmer Corporation, and various private organizations.
6.

My work experience includes Forensic Chemist for the United States Bureau of
Alcohol, Tobacco and Firearms; Counterfeit Specialist, Questioned Document

Examiner, Senior Document Examiner/It[ational Expert for the United States
Secret Service; Chief, Questioned Document Branch and Laboratory Director/

Chief Forensic Scientist for the United States Secret Service.
7.

I

have also been an instructor or guest speaker

in

forensic science for

numerous groups and agencies, to include; U.S. Secret Service, Antioch School

of Law, George
Department

Washingbon University, UCLA, Catholic University, U.S.

of State, International Law Enforcement Academy, Naval

Criminal Investigative Service and U.S. Air Force.
8.

I

have testified as an expert witness

in state, federal and military courts of

law, as well as testifred or been deposed in foreign court systems to include;
Austria, Australia, Canada, Germ&ry, Sri Lanka and Thailand.

I

have also

testified at The Hague in the Netherlands and three times before the U.S.
Congress.
9.

I

served the U.S. Government as a forensic scientist for over 25 years and have

been in private practice for over 5 years.

10. My current curriculum vitae is attached as Attachment

1.

11. I have not yet prepared a report in this matter, but following are

my

preliminary observations and frndings.

L2. I was present at the law offi.ces of Harris

Beach

in Buffalo, NY starting July

16, ?ALL through July 19, 20LL observing the work of Facebook's document
experts.

13. I was not allowed
14. I did, however,

to examine the questioned documents during that time.

observe Facebook's experts repeatedly exposing the "Work For

Hire" Facebook Contract to high intensity and ultraviotet (UV) lights.

15. At one point during the testing I commented directly to plaintiffs

counsel that

the defendant's experts were unnecessarily repeating tests and over-exposing
the documents to intense lights and that their actions could cause damage.

16. It is widely known that optical brighteners in paper can fade through exposure
to UV light causing paper to yellow (Attachment 2).
17

.

Furthermore, certain types of wood and paper compositions "yellow" when
exposed to ultraviolet light (Attachment 3).

18. On July 25,20L1, I was first allowed to examine

the Facebook Contract.

19. On that date, I captured multiple images of the

Facebook Contract and

immediately noticed an odd yellowing on one side only of both pages.

20. The yellow discoloration/damage evident in the Facebook Contract is, in my
opinion, Iikely the result of repeated exposure of the document

to

high

intensity and/or UV lights.

2L. Until recently, I was uncertain

of when

this damage occurred.
3

22.

IJpon review of the videotapes made of the examinations by both defendant's

and plaintiff s experts,

it is evident that the Facebook Contract yellowed

dramatically between the time when the document was provided
defendant's experts and when

23. In the Buffalo examination

to

the

it was made available to the plaintiffs experts.

video the Facebook Contract can be clearly seen as

visibly white when compared to the much more yellowed six-page StreetFax
Contract (See times I:L4-1:30). EXHIBIT

24.

Those images were captured when the documents were being presented to the
defendant's for testing.

25. At the end of the Buffalo testing the documents were placed in

envelopes,

sealed and then signed by both counsel across the seals.

26. The Chicago examination was subsequently conducted 6 days later (July 25,
2011).

27. Based on the videotape of the Chicago examination, it appears that
Facebook Contract was presented while
(See

28. This

the

still in its sealed and signed condition

time :13). EXHIBIT
sealed and signed envelope bears the date of "71L9l11," the date of the

conclusion of the defendant's forensic testing in Buffalo.

29. This leads to the logical

conclusion that the discoloration and deterioration of

the Facebook Contract occurred as a result of the work conducted in Buffalo by
the defend.an't experts.

30. My first physical examination

of the Facebook Contract occurred in Chicago on
4

July 25,?OLI.

31.

Upon my physical examination of the Facebook Contract,

I observed that the

two pages are both 8 y2" X 11", non-watermarked, "bond-type" paper.

32. I found that the two pages were consistent in coloration and surface texture.

33. Both pages of the Facebook Contract

were highly yellowed on the obverse or

face side, only.

34. This was quite noticeable

and odd.

35. Although quite yellow on the face side, both pages of the Facebook Contract
were white on the reverse or back side.

36.

There are several methods by which a piece of paper of this type can become
discoloured.

37

.

They include &B€, heat, contact with chemicals, or exposure to intense or

IfV

lights.

38. Except for intense or UV light

exposure, each

of the remaining

methods

necessarily would have yellowed both sides of the pieces of paper comprising
the Facebook Contract.

39.

The fact that the yellowing on the two pages of the Facebook Contract is only

found on one (the face) side

is

notable and appears consistent with

overexposure of the documents while laying on their back during testing.

40. I

observed Facebook's experts repeating

the same tests on the

Contract numerous times and performing

Facebook

far more testing than would

typically be needed to make proper scientific determinations about the
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authenticity of the document.

4L. A typical evaluation

of documents in my field can involve the use of a machine

called a video spectral comparator.

42.

One such model is known as the Foster Freeman VSC4.

43. That is one of the pieces of equipment utilized by the defendant's experts in
Buffalo.

44. A video spectral comparator, e.g. the Foster Freeman VSC4, can aid

an

examiner in determining the characteristics of a document by utilizing intense

illumination sources,

€.S.

IfV along with filters.

45. Typically these examinations are done as quickly as possible to limit

over

exposure of the document to these intense lights.

46.

Facebook's experts exposed the Facebook Contract repeatedly for long periods
of time to intense and UV lights.

47. It is my understanding that the Foster Freeman VSC4 instrument

contains an

ultraviolet light that is above the document as the document is being viewed
inside its closed chamber.

48. This could explain why the two pages of the Facebook Contract

are yellowed on

their face sides only.

49. The damage to the

Facebook Contract does

exposure since logically

if

not appear to be due to heat

heat was the cause one would expect consistent

damage on both sides of the pages and not just on the face of each page.

50.

One of the tests

I conducted

was a physical examination of the folds in the
6

pages and the staple holes found on the pages of the Facebook Contract.

51. After those preliminary examinations, I found no reason to

suggest page

substitution.

52. Another test I

conducted on the documents was an analysis of the printing

method(s) used to produce the printing found on the two pages of the Facebook
Contract.

53.

Physical analysis resulted

in a determination that both pages 1 and 2 of the

Facebook Contract were printed with an offi.ce machine that utilized toner, e.g.
a laserjet

printer.

54. Following, I conducted

a chemical analysis of the toner found on the pages of

the Facebook Contract.

55. Preliminary test results indicate that the toner found on page 1 matches that
found on page 2.

56.

The toner was compared against my library of standards and was found to be
consistent with toner from a Hewlett Packard (HP) 1100/3200 series printer.

57

. At this point, the toner has not been found to be consistent with any other
toner from my library of standards.

58.

The HP 1100 series printer was frrst introduced to the public in 2001 and they
were discontinued in May of 2005.

59.

The HP 3200 series printer was first introduced to the public in 2000 and they
were discontinued in March of 20A2.

60. The Facebook Contract bears the date "4128103."

In

accordance

with 28 U.S.C. L746 I declare under penalty of perjury under

the laws of the United States of America that the foregoing is true and correct.

Executed on: November 3, 2011-.

Larry Stewart
Declarant

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