Ceglia v. Zuckerberg et al

Filing 214

MEMORANDUM IN SUPPORT re 213 MOTION for Sanctions Notice of Motion for Sanctions for Spoliation of Facebook Contract by Defendants byPaul D. Ceglia. (Attachments: # 1 Exhibit A, # 2 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,
v.

MOTION FOR SANCTIONS FOR
SPOLIATION OF FACEBOOK
CONTRACT BY DEFENDANTS

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

MEMORANDUM
Defendants’ experts had possession, custody and control of the Facebook
Contract from July 14, 2011, July 15, 2011, July 16, 2011 and July 19, 2011. An
intervening two days, the contract was kept in a hotel safe guarded 24 hours a day
by an armed guard. Declaration of Paul Argentieri, Doc. No. 193 at ¶14-19.
Facebook’s experts over-exposed the Facebook Contract to ultra-violet (UV)
light. Declaration of Document Examination Expert Larry Stewart, Doc. No. 209 at
¶14-16, ¶20, ¶22, ¶29, ¶39-40, ¶46-48 and see also Declaration of Document
Examination Expert James Blanco Doc. No. 210 at ¶9-11, ¶14-15, ¶17-18.
By the time the Facebook Contract had been evaluated and over-tested
during those four days, it now had a distinctly yellow tint on the front of both pages
of the contract.
As further analysis of the video of the Facebook expert’s evaluation and

1

treatment of the Facebook Contract continues, it is now indisputable that another
expert repeatedly handled the Facebook Contract without wearing gloves.

This

mishandling meant that dirt, skin cells, oils and other debris commonly present on
human hands was transferred to the Facebook Contract while it was in the midst of
evaluation by other Facebook experts.
This treatment of the key evidence in a case involving a claim worth billions
of dollars is egregious. It is especially egregious that other experts in the room did
not immediately stop that expert from handling the Facebook Contract in a way
that undoubtedly contaminated it. See video clip below which has been sped up for
the court’s benefit to quickly review the evidence.

Watch as Facebook expert
repeatedly touches the
face of the page of the
Facebook Contract with
his fingertips of both
hands.

2

Eventually, recognizing this repeated rookie protocol breach, an expert from
across the room, to the right of the camera’s view, motions quickly with his left
hand to the ungloved expert urging him to don gloves.

The mishandling expert

moves out of view of the camera and obscures his efforts to finally put gloves on.

Notice this Expert
Motion with his left
hand to the expert
on the left of the
screen to put his
gloves on.
Late in day two
of testing
Facebook Contract
is already appearing
discolored.
00
:0
1:
03
:17

00
:0
1:
03
:17

But, as they often say in hokey late night television commercials, that’s not
all.
Even after mishandling the Facebook Contract with his hands, the expert
picks up the contract, carries it to the end of the conference table and sets it on top
of a desktop computer tower that has been running and generating heat all day.
Exhibit A to this motion is a time lapse video showing how much time elapses
with the Facebook Contract casually sitting on and then eventually hanging from
this desktop computer.

It rests there for nearly an hour.

Eventually, another

expert removes the document from its haphazard storage place and immediately
3

subjects it to another test inside a machine which projects UV light onto it yet
again.
This ungloved handling and subsequent casual mishandling of the Facebook
Contract has damaged the its evidentiary value.
Despite the Facebook Contract being more than eight years old, that alone
does not render it impossible to recover usable fingerprints. Declaration of Thomas
Martin at ¶10-11. Even unnecessary contact with anything other than the corner of
the Facebook Contract with a gloved hand can make otherwise usable and
recoverable fingerprints unrecoverable. Id. at ¶12.
When the Facebook Contract was handled by Defendant Zuckerberg and Mr.
Ceglia at the time of its signing in 2003, it is quite possible that usable fingerprints
of both parties were left on some surface of the contract.

Id. at ¶13.

When

Facebook’s expert touched the document with his ungloved hand, fingers, finger tips
and heel of his palm, he likely caused new latent fingerprint impressions to be
placed on that piece of paper. Id. at ¶14. That ungloved handling of the Facebook
Contract has resulted in the placement of new latent prints on the document over
what would have been usable, recoverable fingerprints from the time of its signing,
were they present. Id. at ¶14.
Experts in the field of fingerprint recovery and analysis know that standard
protocols when dealing with documents as evidence require no handling of the
document without gloves and minimal handling of the document even with gloves.
Id. at ¶16-17.
4

Facebook’s experts have engaged in a pattern of either intentionally or
recklessly mishandling the key evidentiary document in this case. This expedited
discovery has caused Facebook’s experts to commit expedited destruction of the key
evidence.

The excessive UV exposure by Facebook’s experts has caused obvious

yellowing and now mishandling of the document without gloves has ruined the
possibility of recovering usable prints from the wide surface of the document
touched by the expert with his bare hands and fingers. Even their expert’s casual
and one might say sloppy handling of the document, placing it on top of a running
computer which has been generating heat all day, speaks volumes about the
reliability of the results of testing performed by these experts.
Finally, the ungloved handling of the Facebook Contract as depicted in the
video herein is only a small slice of time that the document was actually repeatedly
handled by Facebook’s expert without gloves.

In real time, the expert is seen

touching his ungloved hand to the surface of the document over a period of at least
twenty minutes.
CONCLUSION
Mr. Ceglia respectfully requests the Defendants be sanctioned for their
conduct spoliating the key evidence in this case. The sanctions for the court’s
consideration should include:
1. An order prohibiting Defendants from disputing the authenticity of the Facebook
Contract; or

5

2. An order directing the jury to presume that absent Defendants’ experts
mishandling of the Facebook Contract, it is likely that usable fingerprints would
have been recovered and that evidence would have been helpful to Mr. Ceglia’s
case; or
3. An order prohibiting Facebook from mentioning to the jury in any way, or
questioning any witness about the absence of usable fingerprints recovered from
the Facebook Contract.
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]

6