Ceglia v. Zuckerberg et al

Filing 237

RESPONSE in Opposition re 201 MOTION to Vacate 83 Order granting Defendants one-side expedited discovery, 188 MOTION for Sanctions Notice of Motion for Sanctions for Spoliation of Evidence by Defendants, 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, 213 MOTION for Sanctions Notice of Motion for Sanctions for Spoliation of Facebook Contract by Defendants, 198 MOTION for Sanctions NOTICE OF MOTION FOR SANCTIONS FOR SPOLIATION OF EMAIL BY DEFENDANT ZUCKERBERG, 223 MOTION Order re 41 Text Order Referring Case to Magistrate Judge,,,,, Notice of Motion for Order Prohibiting Defendants from Reliance on Argument that Ceglia Zuckerberg email exchanges in Amended Complaint are Frauds in any dispositive motion MOTION Order re 41 Text Order Referring Case to Magistrate Judge,,,,, Notice of Motion for Order Prohibiting Defendants from Reliance on Argument that Ceglia Zuckerberg email exchanges in Amended Complaint are Frauds in any dispositive motion filed by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
-----------------------------------PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
Defendants.
------------------------------------

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

DEFENDANTS’ OMNIBUS OPPOSITION TO CEGLIA’S SIX MOTIONS

Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]
November 28, 2011

Orin Snyder
Alexander H. Southwell
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 3
I.

THIS COURT SHOULD REJECT CEGLIA’S REQUEST THAT IT
VACATE THE EXPEDITED DISCOVERY ORDERS THAT HE
CONTINUES TO WILLFULLY AND CONTUMACIOUSLY DEFY. ............... 3

II.

CEGLIA’S SUGGESTION THAT ZUCKERBERG “SPOLIATED”
EMAILS FROM THE HARVARD ACCOUNT IS FRIVOLOUS AND
ITSELF SANCTIONABLE. ................................................................................... 5

III.

CEGLIA SEEKS TO BAR DEFENDANTS FROM PRESENTING THE
COURT WITH EVIDENCE DEMONSTRATING THAT THE
PURPORTED CONTRACT IS A FAKE. .............................................................. 7

IV.

CEGLIA SEEKS TO BAR DEFENDANTS FROM PRESENTING THIS
COURT WITH EVIDENCE DEMONSTRATING THAT HE
FABRICATED THE “EMAILS” IN HIS FIRST AMENDED
COMPLAINT. ........................................................................................................ 9

V.

CEGLIA BAKED THE PURPORTED CONTRACT. ........................................ 10

VI.

CEGLIA’S NEWLY-HATCHED “FINGERPRINT” CLAIM IS
MERITLESS. ........................................................................................................ 15

CONCLUSION ............................................................................................................................. 17

i

TABLE OF AUTHORITIES
Page(s)
Cases
Faulkner v. Arista Records LLC,
No. 07 Civ. 2318 (LAP), 2011 WL 2135082 (S.D.N.Y. May 26, 2011).................................. 8
Statutes
28 U.S.C. § 1927 ............................................................................................................................. 3
Other Authorities
Jennifer Preston, House Leaders Plan Facebook Hackathon, N.Y. Times (Nov. 17, 2011) ......... 6

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DEFENDANTS’ BRIEF IN OPPOSITION
Defendants Mark Zuckerberg and Facebook, Inc. respectfully submit this omnibus
opposition to Plaintiff Paul Ceglia’s six motions addressing various aspects of the expedited
discovery ordered by this Court.
INTRODUCTION
By filing six motions containing arguments so frivolous that they border on the absurd,
Paul Ceglia leaves no doubt that he has entered — in the words of his newest lawyer — a
“reality distortion field.” Doc. No. 202 at 3.
Having been caught tampering with and destroying critical evidence, Ceglia now accuses
Defendants of spoliation. Having been caught baking the fake contract in an attempt to give it an
“aged” appearance and prevent ink dating, he now insists that Defendants are responsible. And
having repeatedly been found in violation of this Court’s expedited discovery orders, he now has
the audacity to demand that this Court vacate the very orders he continues to defy.
The obvious purpose of Ceglia’s flurry of filings is twofold. First, he seeks to conceal the
indisputable and overwhelming evidence of his fraud and misconduct through a barrage of
meritless motions that no reasonable lawyer would have signed. Every time Ceglia gets caught
red-handed committing some new act of litigation fraud, he files a new motion asking this Court
to suspend reality and believe that day is night, that up is down, and that Defendants are the ones
responsible for his criminal misconduct and wrongdoing. The fact that he waited for months,
and then filed a frivolous request for a temporary restraining order on the eve of Thanksgiving is
proof positive that Ceglia’s barrage of motions is intended to harass Defendants and drive up
litigation costs in hopes of extorting a settlement.
Second, Ceglia is desperate to portray this as a case of dueling experts, when in fact the
irrefutable evidence leaves no room for debate: the “Work for Hire” agreement attached to his
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First Amended Complaint is a forgery. Indeed, the fact that Ceglia has been abandoned by his
initial slate of purported experts and has been reduced to retaining one “expert” (James A.
Blanco) who was expelled from the American Academy of Forensic Scientists for wrongdoing
and ethical violations, and another (Larry Stewart) who was actually indicted and prosecuted by
the United States Department of Justice for perjury in the course of offering expert testimony, is
a clear indicator that Ceglia has now hit rock bottom.
As this Court directed, Defendants will present their experts’ findings and move to
dismiss this fraudulent lawsuit once Ceglia has complied with the expedited discovery orders. In
the meantime, this Court should summarily deny Ceglia’s pending motions:
•

Ceglia’s motion to vacate the expedited discovery orders (Doc. No. 202) should be
denied because Ceglia still has not fully complied with them, and because cancelling
expedited discovery before it is complete would reward Ceglia for his ongoing,
contumacious defiance of this Court’s orders.

•

Ceglia’s motion for sanctions based on the purported “spoliation” of emails from
Zuckerberg’s Harvard account (Doc. No. 199) should be denied because no emails were
deleted from the Harvard account.

•

Ceglia’s motion to prohibit Defendants from mentioning the authentic contract found on
Ceglia’s own computer (Doc. No. 228) should be denied because he has already
represented that he emailed this document to Jim Kole — a document that constitutes
incontrovertible proof that the purported “Work for Hire” agreement attached to the First
Amended Complaint is a fake and Ceglia’s entire lawsuit is a lie.

•

Ceglia’s motion to prohibit Defendants from mentioning his fake emails in their
forthcoming motion to dismiss (Doc. No. 224) should be denied because evidence of
Ceglia’s fraud is highly relevant to this Court’s determination as to whether this lawsuit
may proceed.

2

•

Ceglia’s motion for sanctions based on the purported “spoliation” of the fabricated
contract through exposure to UV light (Doc. No. 189) should be denied because there is
conclusive and indisputable proof that Ceglia and/or others working in concert with him
“baked” the document, thereby fading the ink and giving the pages an odd discoloration,
before it was produced to Defendants’ experts for inspection.

•

Ceglia’s motion for sanctions based on the purported “spoliation” of the fabricated
contract caused by handling without gloves (Doc. No. 214) should be denied because
Ceglia’s lawyers and experts never suggested there might be relevant fingerprint
evidence on the document and in fact handled it repeatedly themselves without gloves
during the examination.
In light of the fact that Ceglia has filed six frivolous motions for sanctions or other relief

within a very short time period, as well as a patently baseless request for a temporary restraining
order on Thanksgiving — none of which has a colorable factual or legal basis, and all of which
appear intended solely to harass Defendants — this Court would be well within its discretion to
issue an order under 28 U.S.C. § 1927. That section empowers district courts to award attorneys’
fees and other relief against any party — or lawyer — who “multiplies the proceedings in any
case unreasonably and vexatiously” by filing a series of vexatious and meritless motions as
Ceglia has done here.
ARGUMENT
I.

THIS COURT SHOULD REJECT CEGLIA’S REQUEST THAT IT VACATE
THE EXPEDITED DISCOVERY ORDERS THAT HE CONTINUES TO
WILLFULLY AND CONTUMACIOUSLY DEFY.
This Court granted expedited discovery on July 1, 2011, based on Defendants’ showing

that Ceglia had fabricated the Work for Hire agreement and the purported emails, and was
perpetrating a fraud on the Court. Doc. No. 83. Even at that time, Defendants had
overwhelming evidence of litigation fraud. The expedited discovery this Court ordered has

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uncovered even more evidence of Ceglia’s fraud. Among other things, Defendants’ experts
found a copy of the authentic contract on Ceglia’s own computer. And when they were finally
permitted to examine the bogus contract, they discovered that Ceglia had baked the document as
part of an unsuccessful attempt to give the document an aged appearance and prevent Defendants
from dating the ink.
As this Court is well aware, Ceglia has obstructed and refused to comply with this
Court’s orders. He filed numerous bad-faith requests for stays, extensions, and reconsideration,
Doc. Nos. 116, 120, 126, 134, 164, and tried to conceal dozens of documents based on frivolous
assertions of privilege. Doc. Nos. 107, 156-2, 156-4, 208. And when those obstructionist efforts
failed, he simply defied this Court rather than comply. This Court has repeatedly found that
Ceglia violated not only the initial July 1 order, but also the subsequent orders that were aimed at
enforcing his compliance with the July 1 order. See Doc. Nos. 117, 208 (orders on motions to
compel). There is no question that Ceglia’s continued and ongoing violation of court orders is
willful and deliberate. His attorneys swore under oath that Ceglia had expressly directed them to
disobey this Court’s orders, Doc. Nos. 153-1, 153-2, and then promptly withdrew from the case.
To this day, Ceglia still has not fully complied with the discovery ordered by this Court,
as this Court recognized in its most recent order. Doc. No. 208. Ceglia now has the audacity to
ask the Court to vacate the very orders that he is willfully and contumaciously defying. This
Court should summarily reject this outrageous request. Cancelling expedited discovery before it
is complete would reward Ceglia for his cynical and contumacious misconduct.
Ceglia mistakenly argues that the “findings” of his own experts preclude the need for
expedited discovery. Doc. No. 202 at 8. The fact that Ceglia has retained several publicly
discredited, self-styled “experts” to report that they see no evidence of fraud does not obviate the

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need for expedited discovery. As this Court explained in issuing its July 1 order, Defendants will
submit their expert reports once expedited discovery is complete. Because Ceglia has not
produced the discovery ordered by this Court — and indeed has been obstructing and
stonewalling discovery from the moment the Court first ruled — there is absolutely no reason for
this Court to vacate its orders.

II.

CEGLIA’S SUGGESTION THAT ZUCKERBERG “SPOLIATED” EMAILS
FROM THE HARVARD ACCOUNT IS FRIVOLOUS AND ITSELF
SANCTIONABLE.
Ceglia and his lawyers could not possibly have filed Document No. 199 in good faith.

They contend that Mark Zuckerberg deleted emails from his Harvard account. The basis for this
claim is their false assertion that Defendants’ computer forensics expert, Bryan Rose,
“discovered that emails present in Defendant Zuckerberg’s Harvard email account in October
2010 had been deleted between that time and April 2011.” Doc. No. 199 at 3.
Rose said no such thing. As he explained in his declaration filed on June 24, 2011 (Doc.
No. 73), what Ceglia falsely portrays as “deleted” emails is simply the result of the ordinary deduplication process. There are no “missing” or “deleted” emails. As Rose explained more than
five months ago, Stroz Friedberg initially identified 17 emails that were present in the Harvard
account as of October 2010, but did not appear to be present as of April 2011. Id., ¶ 4. This
comparison was conducted using an automated de-duplication process. Id. When Rose further
examined those 17 emails, he confirmed that all 17 are in fact present in the April 2011 version
of the account. Id., ¶ 5. He explained:
The reason that the 17 emails appeared to be present only in the October
2010 [version] was a result of minor formatting differences and technical

5

issues. For example, some of the emails had extra white space in the
Subject line.
In summary, every email in the October 2010 [version] is present in the
April 2011 [version]. No email from the October 2010 [version] has been
deleted or lost.
Id., ¶ 5-6 (emphasis added). Ceglia simply ignores what Rose actually said and bases his entire
motion on the completely false premise that Rose discovered that emails had been deleted from
the Harvard account. This is not the first time that Ceglia has advanced this bankrupt theory. On
July 1, 2011, in denying Ceglia’s request for expedited discovery, this Court already rejected
Ceglia’s claim that Rose “admitted” that emails were deleted from the Harvard account. See
Docs. No. 58 (Ceglia brief raising this claim); 83 (order denying Ceglia motion). The fact that
Ceglia is recycling frivolous, previously-rejected arguments confirms that this motion was not
filed in good faith.
Ceglia’s brief takes a bizarre detour when it argues that sanctions are warranted based on
Facebook’s “corporate philosophy” of “hacking.” Doc. No. 199 at 11-14. But as the New York
Times has recently explained, in the context of Facebook’s “Hackathon” event, “[h]ackathon is a
term used to describe an event where programmers come together to build applications in a
collaborative process.” See Jennifer Preston, House Leaders Plan Facebook Hackathon, N.Y.
Times (Nov. 17, 2011), available at http://thecaucus.blogs.nytimes.com/2011/11/17/houseleaders-plan-facebook-hackathon/. There is nothing remotely sinister about Facebook’s “hacker”
ethos, which simply prizes creativity and outside-the-box thinking.

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III.

CEGLIA SEEKS TO BAR DEFENDANTS FROM PRESENTING THE COURT
WITH EVIDENCE DEMONSTRATING THAT THE PURPORTED CONTRACT
IS A FAKE.
As this Court is well aware, Defendants discovered the authentic contract on Ceglia’s

own computer. Precisely as Mark Zuckerberg described it in his declaration, Doc. No. 46, the
agreement only concerns the terms under which Zuckerberg provided limited work for the failed
website StreetFax. It says nothing about Facebook, the “Page Book,” or any sort of social
networking website.
Based on their examination of Ceglia’s computers, Defendants also discovered that
Ceglia had emailed the authentic contract on March 3, 2004 to Jim Kole, an attorney at the
international law firm of Sidley Austin, who was an initial member of StreetFax. The email was
sent from the [e-mail] email account and the Subject line read “Streetfax contract w
mark.” In the cover note, Ceglia wrote: “Hi Jim, Hope all is well, I am at 727 490 5751 when
your ready. Ill send page two next I should be here for the next hour. Paul.” See Ex. A to
Southwell Decl.; Southwell Decl. at ¶ 11. Ceglia’s 2004 emails to Kole and the authentic
contract are also stored on the server at the Sidley Austin law firm. The authentic contract and
corroborating transmittal emails are irrefutable proof that the “Work for Hire” agreement
attached to Ceglia’s First Amended Complaint is a fake.
Ceglia now says that the authentic contact and his emails transmitting the contract are
actually forgeries that were created by Mark Zuckerberg in 2004. But when Stroz Friedberg
originally discovered the authentic contract and the transmittal emails on Ceglia’s computers,
Ceglia did not claim that they were forgeries. Quite the contrary, he claimed that they were
attorney-client privileged communications Ceglia sent to his lawyer, describing them on his
August 2nd privilege log as emails “from Paul Ceglia to his attorney Jim Kole, Esq.” Ex. B to
Southwell Decl; see also Southwell Decl. at ¶ 13. Ceglia thus represented to this Court that the
7

very communications he now swears under oath to have never seen before, Doc. No. 220, were
in fact emails he sent to Mr. Kole seeking legal advice. Only when this Court overruled Ceglia’s
attempt to conceal these documents through a frivolous privilege claim, and ordered him to
produce them, did Ceglia do an about-face and start arguing that they were forgeries that had
been planted on his computer.
The fact that these documents from 2004 were found on Ceglia’s own computer — as
well as on the Sidley Austin server — coupled with Ceglia’s attempts to conceal them with
frivolous assertions of privilege, is overwhelming proof that these documents are genuine.
Ceglia’s attempt to explain away these documents is preposterous. According to Ceglia, in 2004
Mark Zuckerberg (then a sophomore at Harvard) foresaw this lawsuit filed in 2010 and set to
work creating a fabricated StreetFax agreement that deleted all references to Facebook.
Zuckerberg then discovered that Ceglia’s father had an Adelphia email account, somehow
obtained the password to that account and accessed it, and emailed the fabricated document to
the Sidley Austin lawyer, pretending that he was Ceglia and asking the lawyer to call him back.
Ceglia’s crazy theory underscores his desperation and leaves no doubt that he and his lawyers are
willing to say things they know are not true if they think it gives them a chance to avoid
dismissal and sanctions.
Ceglia’s request that this Court ignore the authentic contract found on his own computer
— and his own emails transmitting the contract and describing it as the “Streetfax contract w
mark” — should be summarily denied. See, e.g., Faulkner v. Arista Records LLC, No. 07 Civ.
2318 (LAP), 2011 WL 2135082, at *3 (S.D.N.Y. May 26, 2011) (holding that Plaintiffs’ motion
to strike on authenticity grounds certain documents that were produced by Plaintiffs “teeters on
the edge of sanctionable” and is “meritless”). The suggestion that these are “unauthenticated”

8

documents is baseless: they were found on Ceglia’s own computer and have been residing on
the Sidley Austin server for years. Ceglia’s empty claim in his declaration that he has never seen
these documents before provides no basis for excluding the authentic contract and corroborating
emails from this case.

IV.

CEGLIA SEEKS TO BAR DEFENDANTS FROM PRESENTING THIS COURT
WITH EVIDENCE DEMONSTRATING THAT HE FABRICATED THE
“EMAILS” IN HIS FIRST AMENDED COMPLAINT.
Ceglia also seeks to muzzle Defendants from stating the truth in their forthcoming motion

to dismiss — that Ceglia fabricated the “emails” he included in his First Amended Complaint —
and from presenting this Court with the evidence establishing his fraud. Doc. No. 224. This is
yet another frivolous request that should be summarily denied. Indeed, the fact that Ceglia is
basing this lawsuit on fake emails is highly relevant to the question whether this case should be
dismissed, and will be one of the many reasons supporting Defendants’ forthcoming motion to
dismiss. Ceglia’s attempt to prevent this Court from even considering this issue — or seeing the
evidence that Defendants have gathered during expedited discovery — is a telling
acknowledgment that he knows he has been caught in a fraud.
At this point, there can be no reasonable argument that the “emails” Ceglia purported to
reproduce in this First Amended Complaint are genuine. They are obvious fakes. Ceglia himself
admits that he does not have any emails. Rather, he claims that he has some floppy disks with
word processing documents that contain text that says he cut-and-pasted from emails with
Zuckerberg. This is the stuff of late-night comedy; it is not even remotely plausible.
If there were any possible doubt on this score, the fact that Zuckerberg’s Harvard account
does not contain a single one of Ceglia’s purported emails confirms that they are fakes. See June
2, 2011 Rose Decl. (Doc. No. 47) at ¶ 7. In fact, the genuine emails that were found on the
9

server contain dozens of exchanges between Zuckerberg, Ceglia and others concerning the
Streetfax project. Id., ¶ 8. Not a single email with Ceglia or his associates mentions Facebook or
any type of social networking website. Id.
Ceglia discusses at length the “findings” of his “expert” Jerry Grant. Doc. No. 224 at 5.
But Grant is very careful to avoid saying that the purported emails described in the First
Amended Complaint are authentic; indeed, he does not even say that the two floppy disks he
analyzed have anything to do with the purported emails. Doc. No. 226 at ¶ 10. Rather, all he is
willing to say is that he conducted some tests on the disks themselves, none of which could
confirm Ceglia’s fraud. See id., ¶ 11.
Ceglia also challenges statements from the declaration of Defendants’ expert Bryan Rose
concerning the emails found on the Harvard server. Doc. No. 224 at 12-19. These arguments,
however, are both misplaced and premature. As this Court directed, the expedited discovery
phase is to focus on the authenticity of Ceglia’s purported emails (as well as the alleged Work
for Hire agreement). To the extent Ceglia wishes to challenge the findings of Defendants’
experts concerning the genuine emails they found on the Harvard server, the proper time to do
that would be once the expedited discovery phase is complete and Defendants have produced the
genuine Harvard emails, if this case is still ongoing at that point. Ceglia’s motion is a
transparent and improper attempt to frustrate the expedited discovery schedule ordered by this
Court, under which Defendants will first examine Ceglia’s production, submit their expert
reports, and move to dismiss this fraudulent lawsuit.

V.

CEGLIA BAKED THE PURPORTED CONTRACT.
The first time that Defendants or their experts saw the original version of Ceglia’s alleged

“Work for Hire” agreement was when Paul Argentieri removed it from a U.S. Postal Service
10

envelope at the offices of Harris Beach in Buffalo, New York at 9:11 a.m. on July 14, 2011. At
that moment, it was evident that someone had tampered with the document: the ink was faded
and the pages had an off-white or ivory tinge.
The Work for Hire agreement looked very different in January 2011. As a result of this
Court’s expedited discovery orders, Defendants have obtained the images of the document that
Ceglia’s experts took in January 2011. In those images, the ink on the document was dark and
the pages did not have an off-white or ivory tinge. See Aginsky Decl. at ¶ 6, 8 (Doc. No. 66).
Indeed, Ceglia’s own expert described the ink as “black ballpoint ink” in his June 16, 2011
declaration. Id. at ¶ 6. But the Work for Hire agreement that Argentieri removed from the
envelope on July 14 was remarkably different. The faded ink and odd discoloration of the paper
indicate that, at some point between January and July 14 — a time period during which the
document was exclusively in the possession of Ceglia and his lawyers — someone attempted to
artificially “age” the document and prevent testing of the ink by “baking” it. As Ceglia himself
admits, the Work for Hire agreement “now appears as if someone altered it.” Doc. No. 199 at 8.
In light of the indisputable fact that the appearance of the document has been altered
while in his possession, Ceglia’s last, desperate recourse is to insist that Defendants’ experts are
responsible for the change. According to Ceglia, Defendants’ experts faded the ink and
discolored the document by subjecting it to ultraviolet light over the course of their examination.
This claim is demonstrably false and could not have been made in good faith.
Before Defendants’ experts began analyzing the Work for Hire agreement, they imaged it
so as to memorialize how the document appeared before their inspection began. Those images
indisputably show that the ink was already faded and the document already had an off-white or
ivory tinge when Mr. Argentieri removed it from his envelope. Presented below is a comparison

11

of how the document looked (a) in January 2011 and (b) seven minutes after Argentieri removed
it from the envelope on July 14, before Defendants’ experts began their examination:

1/13/11, 10:05 AM — Aginsky

1/13/11, 9:53 AM — Aginsky

7/14/11, 9:18 AM — Tytell

7/14/11, 9:22 AM — Tytell

In fact, the videographer Robert Gianadda has stated under oath that “the documents Mr.
Argentieri removed from the envelopes on the morning of July 14th did not change color at all
from the moment Mr. Argentieri removed them to the last day of inspection on August 27th,
based on the video of the inspection.” Doc. No. 218 at ¶ 4. As this Court is aware, Ceglia’s
counsel Dean Boland tricked Mr. Gianadda and corruptly procured a declaration that Boland had
misleadingly drafted so as to convey a false impression to this Court that the document had
changed in appearance over the course of Defendants’ examination — the precise opposite of
what Gianadda had actually told Boland. Id., ¶ 9 (“I now feel like I was misled by Mr. Boland. I
do not consider Mr. Boland to have been candid or forthright with me.”).1
1

This misconduct required Defendants to file a Motion to Strike and for Sanctions on
November 15, 2011 (Doc. No. 216).

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Likewise, the accompanying declarations from Defendants’ experts Peter Tytell, Gus
Lesnevich, and Gerald LaPorte also confirm that the Work for Hire agreement was already
discolored and the ink was already faded when it was first presented to them by Mr. Argentieri,
prior to any testing. See Tytell Decl. at ¶ 19-23; Lesnevich Decl. at ¶ 10; LaPorte Decl. at ¶ 8-9.
Ceglia argues that the video of the inspection depicts the Work for Hire agreement “as
two white pieces of paper.” Doc. No. 189 at 7. But the low-resolution video simply cannot
capture the faded ink. Indeed, at certain points on the video as the light in the room hits the
document in a certain way, the document becomes so “white” that the text actually disappears.
Nor is the video capable of capturing precise shades of color, such as the difference between a
“white” document and a “white” document with a yellowish or off-white tinge. Colors on this
type of low-resolution video can vary significantly depending on whether the room is illuminated
with natural or artificial light, the white/dark balance on the camera, changes in camera focus
and aperture, and a host of other factors. See Tytell Decl. at ¶ 34.
Ceglia also relies heavily on the self-serving claims of Paul Argentieri that someone other
than himself or his client must have tampered with the Work for Hire agreement. But even if
this Court were willing to take Argentieri at his word, the fact that his declaration contains
numerous obvious inaccuracies — such as his repeated statements under oath that he carried the
purported contract and spec sheet in a “FEDEX envelope” when the video shows him removing
the documents from a U.S. Postal Service envelope (see Tytell Decl. at ¶ 14 and n.1) — provide
even less reason to trust his powers of observation and to credit his self-serving claims about the
shadings of documents and the like.
In any event, the question before this Court is when the document’s appearance changed,
and the images reproduced above that were captured before Defendants’ testing began —

13

coupled with Gianadda’s, Tytell’s, Lesnevich’s and LaPorte’s uniform testimony that the color
of the document did not change over the course of Defendants’ experts’ examination — confirm
that the document’s appearance had changed before Argentieri produced it on July 14th. These
facts render irrelevant Ceglia’s lengthy speculation of how the examination methods used by
Defendants’ experts supposedly caused the yellowing of the document. Doc. 189 at 12-14.
Nonetheless, Ceglia is mistaken on numerous grounds. While he speculates that Defendants’
experts damaged the Work for Hire agreement by exposing it to ultraviolet light, the truth is that
the equipment the Defendants’ experts used is not destructive and did not discolor the document.
See Tytell Decl. at ¶ 26-27; LaPorte Decl. at ¶ 12. In fact, Ceglia’s own expert, Valery Aginsky,
subjected the Work for Hire agreement to testing with ultraviolet light, see Aginsky Decl. (Doc.
66) ¶ 5; another of Ceglia’s experts advertises ultraviolet testing as “nondestructive” on his
website, see Tytell Decl. at ¶ 26(g); and ultraviolet testing is widely recognized throughout the
professional literature as both nondestructive and necessary to determining the authenticity of a
paper document. See Tytell Decl. at ¶ 26. Ceglia’s claims as to VSC and ESDA testing
conducted by Defendants’ experts are equally mistaken. All of those tests are standard within
the profession and none of them changed the appearance of the ink or the color of the pages. See
Tytell Decl. at ¶ 40; LaPorte Decl. at ¶ 11.
Finally, Ceglia devotes pages of his brief — under the delusional header “THE
AUTHENTICITY OF THE FACEBOOK CONTRACT HAS BEEN ESTABLISHED” — to
explicating the theories of his publicly-discredited “experts” Larry Stewart and James Blanco.
But neither Stewart nor Blanco is willing to state, under oath, that the Work for Hire agreement
is authentic and not a forgery. And while both Stewart and Blanco try to create the impression
that Ceglia did not bake the document, neither “expert” has any response to the fact that the

14

image of the Work for Hire agreement captured in January 2011 differs radically from the image
of the altered document captured the morning of July 14th, seven minutes after Argentieri
removed it from the envelope and before Defendants’ testing began. In any event, Stewart’s and
Blanco’s “preliminary findings” are incomplete, inaccurate, and at times incoherent, and
Defendants will submit their own expert reports at the time directed by this Court — once Ceglia
has finally and fully complied with this Court’s expedited discovery orders.

VI.

CEGLIA’S NEWLY-HATCHED “FINGERPRINT” CLAIM IS MERITLESS.
Ceglia argues that Defendants’ experts “spoliated” the alleged Work for Hire agreement

when they touched it without gloves at several points during the course of their examination.
Doc. No. 214. Like the purported contract itself, the feigned shock and outrage in Ceglia’s brief
are manufactured. His arguments are entirely without merit and should be rejected.
First and foremost, neither Ceglia nor his many lawyers and purported experts ever — at
any point in this litigation — stated or even hinted that Plaintiff contemplated the possibility of
testing the hard-copy documents for fingerprints, let alone that Plaintiff intended to do so.
Although Ceglia has put forth a group of publicly-discredited “experts” to opine on many
physical aspects of the document such as paper, ink, indentations, etc., he has never before
suggested that the documents might contain fingerprints relevant to the question of authenticity
or his claims. See Southwell Decl. at ¶ 7.
When the examination began, no one on Ceglia’s team suggested that gloves were
necessary. As the examination proceeded over the course of several days in the presence of
lawyers and experts from both sides, no one on Ceglia’s team suggested that gloves were
necessary. And when the examination concluded, no one on Ceglia’s team suggested that gloves
had been necessary. See id., ¶ 8.
15

Not only did Ceglia’s lawyers and experts fail to advise Defendants’ experts to wear
gloves, they handled the documents themselves without gloves. For example, Ceglia’s expert
Blanco touched the documents approximately eight different times on a single day, including one
instance where he rubbed the documents on his arm. Lesnevich Decl. at ¶ 16. Even Argentieri
touched the documents with his bare hands. Id.
For Ceglia’s newest lawyer — who was not present at any of these examinations — to
assert months later that he is “shocked” that the experts did not use gloves is misplaced and
cynical in the extreme. The statement on page 2 of his motion — that “[i]t is especially
egregious that the other experts in the room did not immediately stop that expert from handling
the [document] in a way that undoubtedly contaminated it” — is particularly cynical, given that
he is speaking of Ceglia’s own experts (not to mention his co-counsel Argentieri), all of whom
were present throughout and several of whom handled the documents themselves without gloves.
If Ceglia’s newest lawyer now believes that there may have been relevant fingerprint evidence
on the documents, he has only Mr. Argentieri and Ceglia’s many purported experts to blame for
failing to mention this concern at any point in the history of this litigation, or to request that it be
addressed in the hard-copy inspection protocol that both sides negotiated and agreed upon. See
Doc. No. 84.2

2
Ceglia suggests in passing, Doc. No. 214 at 3, that Defendants’ experts harmed the
purported contract when they placed it on top of a computer that had been turned on and
“generating heat.” To test this theory, Defendants turned on the same computer and left it
running for 240 hours with a thermometer sensor on top. During the entire course of this
controlled test, the temperature of the computer top never varied more than approximately one
degree from the room temperature. See Lesnevich Decl. at ¶ 18. No serious lawyer would have
suggested that the purported contract was baked and yellowed through this process.

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CONCLUSION
For the foregoing reasons, this Court should deny Ceglia’s six motions in their entirety.

Dated:

New York, New York
November 28, 2011
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]

Attorneys for Defendants Mark Zuckerberg and Facebook, Inc.

17