Ceglia v. Zuckerberg et al
MEMORANDUM IN SUPPORT re 228 MOTION Order Prohibiting Defendants' Reliance on Inadmissible Evidence in Any Dispositive Motion NOTICE OF MOTION for Order Prohibiting Defendants Reliance on Inadmissible Evidence in Any Dispositive Motion byPaul D. Ceglia. (Attachments: # 1 Exhibit A)(Boland, Dean)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
Civil Action No. : 1:10-cv-00569-RJA
MARK ELLIOT ZUCKERBERG, Individually, and
MEMORANDUM OF LAW IN
SUPPORT OF MOTION FOR
DEFENDANTS’ RELIANCE ON
INADMISSIBLE EVIDENCE IN
ANY DISPOSITIVE MOTION
Defendants’ counsel, Mr. Snyder, has stated multiple times that the defense
intends to rely on an unauthenticated digital image purporting to be an agreement
between Defendant Zuckerberg and Mr. Ceglia in its anticipated dispositive motion.
Doc. No. 121 at 44. Mr. Snyder inventively called this email the “smoking gun” both
in filed papers and media interviews.
The defense claims this unauthenticated
digital image was attached to an unauthenticated email between two persons
claiming to be Paul Ceglia and an attorney named Jim Kole. Id and See Exhibit A.
The Defense should be prohibited from relying on the unauthenticated email or the
unauthenticated digital image allegedly attached to the email in Exhibit A for the
reasons set forth below.
THE UNAUTHENTICATED EMAIL
The defense claims Exhibit A is an email exchanged between Mr. Ceglia and
his then attorney Jim Kole. Ceglia has no recollection of sending any such email.
Declaration of Paul Ceglia at ¶7. The defense has presented no evidence that Mr.
Kole ever read or received the unauthenticated email. Therefore, without either the
alleged sender or recipient confirming the authenticity of the supposed email itself,
Defendants cannot authenticate it. Without authentication, the alleged email is not
THE UNAUTHENTICATED DIGITAL IMAGE
Allegedly attached to the unauthenticated email is an unauthenticated
digital image. It was Mr. Ceglia who discovered this unauthenticated email and
unauthenticated digital image on his own computer and “in an abundance of
caution” submitted it to the Defendants during Expedited Discovery. Id. at 9.
Before March 2011, Mr. Ceglia had never before seen this document. Id.
The Defendants claim this unauthenticated digital image is of a two page
contract between Defendant Zuckerberg and Mr. Ceglia. They further claim this
unauthenticated digital image is the “real” contract between the parties. Doc No.
122 at 44. However, the original of this alleged contract, once in Defendant
Zuckerberg’s possession, was discarded by him. Doc. No. 94 at 52. In addition, the
unauthenticated digital image in Exhibit A “appears to have a different page one
that has been substituted into that document by someone.” Id. at 12. Mr. Ceglia
noticed this because he signed the contract attached to the Complaint in this matter
at the same time Defendant Zuckerberg signed that agreement. Id. at 10.
The defense has presented no evidence about who supposedly created the
unauthenticated digital image nor when it was created. They have not provided
this court any evidence establishing whether the unauthenticated digital image is
an original or a copy. They have not provided evidence whether the
unauthenticated digital image was edited from some other copy or not.
THE APPLICABLE RULES
Fed.R.Civ.P. 56(c)(2) reads:
“Objection That a Fact Is Not Supported by Admissible Evidence.
A party may
object that the material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.”
RULE GOVERNING THE ADMISSIBILITY OF
DIGITAL IMAGE EVIDENCE
Evid. R. 901 reads in pertinent part.
“(a) General provision. The requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.”
Authentication is a precondition to any determination of admissibility. [cite].
Evid.R. 1001(2) defines photographs as follows:
“(2) Photographs.—‘'Photographs' include still photographs, X-ray films, video
tapes, and motion pictures.”
In general, a document may not be admitted into evidence unless it is shown
to be genuine. See, e.g., 7 Wigmore on Evidence Secs. 2129, 2130 (3d ed. 1940). The
requirement that the document be authenticated may be satisfied "by evidence
sufficient to support a finding that the matter in question is what its proponent
claims." Fed.R.Evid. 901. This evidence may be direct or circumstantial, see United
States v. Natale, 526 F.2d 1160, 1173 (2d Cir.1975), cert. denied, 425 U.S. 950, 96
S.Ct. 1724, 48 L.Ed.2d 193 (1976), and the latter category may include distinctive
characteristics of the document itself, such as its "[a]ppearance, contents,
substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances," Fed.R.Evid. 901(b)(4).
Federal Rule of Evidence 1002, commonly referred to as the “best evidence
rule,” provides: “To prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as otherwise provided
in these rules or by Act of Congress.” Fed. R. Evid. 1002. However, “[a] duplicate is
admissible to the same extent as an original unless (1) a genuine question is raised
as to the authenticity of the original or (2) in the circumstances it would be unfair to
admit the duplicate in lieu of the original.” Fed. R. Evid. 1003.
Ceglia has consistently questioned the authenticity of the supposed original
document that was scanned to create the unauthenticated digital image. Given the
Defendants’ intent to use Exhibit A as a means to dismiss Ceglia’s entire case, it is
fundamentally unfair to admit this duplicate of unknown authenticity in lieu of the
original whose authenticity Mr. Ceglia has consistently disputed.
Other circuits have more comprehensively addressed the admission of
photographs under the rule of authentication. As a general rule, tangible evidence
such as photographs and videos must be properly identified or authenticated before
being admitted into evidence at trial. Fed.R.Evid. 901(a); United States v. Hobbs,
403 F.2d 977, 978-79 (6th Cir.1968); Authentication and identification are
specialized aspects of relevancy that are necessary conditions precedent to
admissibility. 5 J. Weinstein and M. Berger, Weinstein's Evidence p 901(a) at
901-18 (1978); 11 J. Moore and H. Bendix, Moore's Federal Practice Sec.
901.01[3.-1]-(a) at IX-7 (2d ed. 1982).
The authentication rule has been applied by Circuit Courts to digital image
evidence. “[A] photograph may be authenticated through the testimony of a witness
with knowledge…who testifies that the photograph is an accurate representation of
the scene depicted.”
U.S. v. Lemonde, 188 F.3d 509.
(6th Cir. 1999) citing to
Shahid v. City of Detroit, 889 F.2d 1543, 1546 (6th Cir.1989).
Defendants cannot offer any witness which satisfies the rule of
authentication applicable to digital images.
authentication and in accordance with Fed.R.Civ.P. 56(c)(2) Defendants should be
prohibited from relying on this digital image in any dispositive motion. In addition,
the email account used to allegedly send the email, was not even one that Mr.
Ceglia could access.
The supposedly sent and received email at issue was allegedly sent using Mr.
Ceglia’s parents’ email address of firstname.lastname@example.org. Declaration of Paul Ceglia
at ¶13, ¶15.
He has no recollection of sending an email to anyone using the
email@example.com email account. Id. at ¶16. Mr. Ceglia never owned nor had the
username or password to any such account. Id. at ¶14.
Defendant Zuckerberg, in contrast, had access to all of Mr. Ceglia’s father’s
DEFENDANT ZUCKERBERG HAD ACCESS TO ALL CREDENTIALS TO
SEND THE EMAIL IN QUESTION
Once hired by Mr. Ceglia to work on the StreetFax project and use Mr.
Ceglia’s investment for Facebook, Defendant Zuckerberg had full administrator
access to all StreetFax computers.
Id. at ¶19.
During the early stages of the
development of StreetFax, Mr. Ceglia needed assistance testing the software and
his father was provided a Street Fax user account.
Id. at ¶18.
Zuckerberg had access to Mr. Ceglia, Sr.’s user account as he had access to all user
accounts during his time developing the StreetFax software. Id. at ¶19. At the time
of the creation of Mr. Ceglia, Sr.‘s Street Fax user account, he used the same
password for all places online where he needed to create a username and password.
Id. at ¶17. As a result, at the time this alleged email was sent with the alleged
digital image attached, Defendant Zuckerberg had complete access to all the
necessary credentials to logon to Mr. Ceglia Sr.’s firstname.lastname@example.org email account
and send this email with any attachments he chose to include.
DEFENDANT ZUCKERBERG’S HISTORY OF EMAIL HACKING
Defendant Facebook and Defendant Zuckerberg have never denied reports
that Defendant Zuckerberg gained unauthorized access to Facebook users’ accounts
using that information to access emails of reporters at the Harvard Crimson
newspaper who had written a story critical of both Defendants in this case. http://
The court is well aware from previous documented filings in this case of
Defendant Zuckerberg’s zest for hacking and obtaining unauthorized access to
Defendants have no evidence Mr. Ceglia sent the unauthenticated email or
created and attached the unauthenticated digital image to that email. In contrast,
Plaintiff has provided to this court evidence that Defendant Zuckerberg had the
necessary credentials to send the email in Exhibit A. Further, Defendant
Zuckerberg has reportedly engaged in conduct resulting in the unauthorized
accessing of persons’ email accounts.
For the foregoing reasons, Mr. Ceglia respectfully requests an order
prohibiting the Defense from relying on any unauthenticated alleged email or any
unauthenticated alleged digital image evidence, which would not be admissible at
trial, in any dispositive motion filed during or immediately after the conclusion of
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
18123 Sloane Avenue
Lakewood, Ohio 44107
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