Ceglia v. Zuckerberg et al

Filing 238

DECLARATION signed by Peter V. Tytell re 237 Response in Opposition to Motion,,,, filed by Mark Elliot Zuckerberg, Facebook, Inc. filed by Mark Elliot Zuckerberg, Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(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-00569-RJA
DECLARATION OF
PETER V. TYTELL

I, Peter V. Tytell, am competent to testify to the matters set forth herein and
make this declaration of my own personal knowledge and belief.
1. I respectfully submit this declaration in Support of Defendants' Omnibus
Opposition to Ceglia's Six Motions.
2. I am a forensic document examiner practicing in New York City. For over 40
years I have worked on document cases submitted by courts, prosecutors, public
defenders, law firms, government crime laboratories, private individuals, banks,
and insurance companies both within and outside the United States. I have
studied, lectured, taught, and been consulted as an expert in all areas of
document examination, including, inter alia, the authentication of genuine
documents and the detection of falsely made or altered documents, as well as
methodological issues in forensic document examination.
3. I am a diplomate of the American Board of Forensic Document Examiners (US),
a diplomate of the Forensic Science Society (UK), holding the Society’s Diploma
in Document Examination as a qualified specialist in forensic document
examination; and am a member of the American Academy of Forensic Sciences
(Questioned Document section), the American Society for Testing and Materials

(Committee on Forensic Sciences Membership Secretary, Past-Chairman and
currently Vice-Chairman of the Sub-Committee on Questioned Documents, and
recipient of the ASTM Forensic Sciences Award), the American Society of
Questioned Document Examiners, the Evidence Photographers International
Council, and have participated in meetings of these and other learned
organizations in North America and Europe.
4. I am also an active participant in the work of the Scientific Working Group for
Documents (SWGDOC) and was a founding member of the editorial board of the
International Journal of Forensic Document Examiners. I have been recognized
as an expert witness on numerous occasions in State and Federal Courts in the
United States as well as in the courts of other countries. A true and correct copy
of my full professional resume is attached hereto as Exhibit A.
5. I participated in the Court-ordered Hard-Copy Document Inspection in the
above-captioned matter on July 14 and 15, 2011, at the offices of Harris Beach in
Buffalo, New York.
6. This declaration sets forth certain observations made during my examination of
documents on July 14 and 15, 2011.
7. This declaration also includes comments on certain statements in Plaintiff’s
Memorandum in Support of Motion for Sanctions Against Defendants Facebook
and Zuckerberg for Spoliation of Evidence, supporting declarations, and related
filings (Docs. 188–194, filed 11/01/11).
8. This declaration is not a report of the results of my examinations. A report of the
results of those examinations will be submitted to the Court when appropriate.
9. I was present on July 14, 2011 at the offices of Harris Beach in Buffalo, New
York, when Paul Argentieri, attorney for Plaintiff, first presented to Defendants
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for inspection the two-page document headed “WORK FOR HIRE” CONTRACT,
dated April 28, 2003 (the “Work for Hire document”) and a six-page document
headed StreetFax Back-End Technical Specification, dated April 28, 2003 (the
“Specification document”). I examined these documents on July 14 and 15, 2011.
10. Prior to July 14, 2011, I had reviewed images of the Work for Hire document,
including those images attached to the Amended Complaint, Ex. A (Doc. 39-1,
filed 04/11/11); to the declaration of John Paul Osborn, dated 6/16/11 (Doc. 62,
filed 6/17/11); and to the declaration of Valery N. Aginsky, Ph.D., dated 6/16/11
(Doc. 66, filed 6/17/11).
11. I have subsequently reviewed the video made of the examinations conducted on
July 14 and 15, 2011, as well as portions of the video made of examinations
conducted on July 16, July 19, July 25, and August 27, 2011 (the “Video”).
12. I have also reviewed the following filings in this matter:
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Plaintiff’s Notice of Motion for Sanctions for Spoliation of the Facebook
Contract by Defendants (Doc. 188, filed 11/01/11);

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Plaintiff’s Memorandum in Support of Motion for Sanctions Against
Defendants Facebook and Zuckerberg for Spoliation of Evidence (Doc.
189, filed 11/01/11) (the “Plaintiff's Memo”), along with the attached Ex. A
(Doc. 190) and Ex. B (Doc. 191);

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the declaration of Larry F. Stewart, dated 11/1/11 (Doc. 192, filed
11/01/11);

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the declaration of Paul Argentieri, dated 11/1/11 (Doc. 193, filed 11/01/11);

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the declaration of James A. Blanco, dated 10/31/11 (Doc. 194, filed
11/01/11); and

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the declaration of Dean Boland, dated 11/1/11 (Doc. 195, filed 11/01/11).
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13. I have also reviewed a number of images which I have been informed were
received from Plaintiff as part of discovery production, including images supplied
by Dr. Valery N. Aginsky, and Messrs. Paul Argentieri, James A. Blanco, Kevin
Cross, John Paul Osborn, Eric Speckin, and Larry F. Stewart.
14. At 9:11 AM on the morning of July 14, 2011, in a conference room at the offices of
Harris Beach, Mr. Argentieri removed the Work for Hire document from a
United States Postal Service (USPS) Priority Mail envelope and placed the two
pages on the conference table. Mr. Argentieri then removed the Specification
document from another USPS Priority Mail envelope and placed it on the
conference table. 1
15. As soon as I saw the documents that Mr. Argentieri had placed on the table, I
was extremely surprised by the appearance of the Work for Hire document.
16. I did not announce my observations of the questioned document in the presence
of opposing counsel.
17. The Work for Hire document did not look like an eight-year old document that
had been kept under normal storage conditions.
18. The Work for Hire document did not appear as I had anticipated based upon my
review of both the declaration of Plaintiff’s ink expert Dr. Aginsky, dated June
16, 2011 and the images of the Work for Hire document that Plaintiff had
previously submitted to the Court.
19. Most surprising to me, and immediately noticeable, was the appearance of the
writing ink on the document.

In his declaration Mr. Argentieri states that he had the Work for Hire document “in a
cardboard FEDEX envelope” and the Specification document “in a separate FedEx envelope”
(Argentieri decl. at ¶4). However, I remember—and the Video confirms—that Mr. Argentieri
took the respective documents from USPS Priority Mail envelopes.
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1

20. Because Dr. Aginsky stated in his June 16 Declaration that the writing ink on
both page 1 and page 2 of the Work for Hire document was “black ballpoint ink”
(Aginsky decl. at ¶6), and because of the appearance of the writing in Plaintiff's
previously-filed images of the document, I had anticipated seeing black ballpoint
ink of normal density.
21. The ink that I saw on the Work for Hire document on the morning of July 14 was
neither black nor of normal density.
22. I observed that the ink on both pages of the Work for Hire document was light
tan or faded brown, not at all the sort of appearance that I would expect for black
ballpoint ink after eight years of normal storage.
23. After the initial surprise of the condition of the ink on the Work for Hire
document, later in my examinations I noted that not only was the ink discolored,
but also the paper of the face of each page was discolored. The front of each page
had an off-white or ivory cast, while the reverse of each page was a relatively
brighter white.
24. As is my practice, before I conducted further examination—indeed, even before I
left the room to provide Defendants' counsel with my initial impressions—I took
high-resolution scans (600 dpi) of the front and reverse of each page of the Work
for Hire document. The taking of these initial scans can be seen on the Video of
the inspection, beginning with the front of page 1 at Video 09:15:27 and
concluding with the reverse of page 2 at Video 09:25:32. My observations
described above—the faded, tan-colored ink and the off-white coloration of the
front of the paper—are documented in these initial scans of the Work for Hire
document.
25. True and correct copies of these initial scans are attached hereto as Exhibit B.
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26. As part of my examinations, I viewed the Work for Hire document under longwave ultraviolet illumination.
a. Examination under ultraviolet illumination is considered non-destructive
and is standard practice in forensic document examination.
b. The American Society for Testing and Materials ("ASTM") publishes
consensus standards in the field of forensic document examination
commonly relied upon by forensic document examiners. The ASTM
standards, some of which are specifically referenced below, state that
ultraviolet examination should be used in the examination of a questioned
document.
c. ASTM E2331 Standard Guide for Examination of Altered Documents
refers to ultraviolet illumination, infrared, and infrared luminescence as
non-destructive methods. A true and correct copy of this Standard is
attached hereto as Exhibit C.
d. ASTM E2325 Standard Guide for Non-destructive Examination of Paper
also characterizes ultraviolet illumination, as well as infrared and
infrared luminescence as non-destructive methods for the examination of
paper. A true and correct copy of this Standard is attached hereto as
Exhibit D.
e. ASTM E1422 Standard Guide for Test Methods for Forensic Writing Ink
Comparison also characterizes ultraviolet examination as a nondestructive optical examination. A true and correct copy of this Standard
is attached hereto as Exhibit E.

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f.

Plaintiff's own expert Dr. Aginsky acknowledged that ultraviolet and
infrared examinations are non-destructive in his June 16 declaration.
Aginsky Decl. at ¶5.

g. Plaintiff's own expert Mr. Stewart characterizes ultraviolet testing as
"non-destructive" on his website. A true and correct copy of that webpage
is attached hereto as Exhibit F.
27. Some examinations on July 14 involved the use of a Foster + Freeman VSC-40.
Some examinations on July 15 involved the use of a Foster + Freeman VSC-400.
a. A VSC is an imaging system used in forensic document examination. A
VSC is a “non-destructive” means of forensically examining a document.
A true and correct copy of the Foster + Freeman VSC 400 Brochure is
attached hereto as Exhibit G.
b. A VSC is capable of both viewing and recording the response of
documents and inks when exposed to light of varying wavelengths,
including visible, infrared (in both reflected and luminescence mode),
ultraviolet, as well as transmitted, coaxial, and oblique lighting. A VSC
also contains a powerful magnification tool, allowing detailed examination
of a document. Ultraviolet illumination is only one potential use of the
VSC.
28. I have reviewed scanned images made prior to Defendants' examination on July
14, 2011. These images were made in January of 2011 by Plaintiff’s experts Dr.
Aginsky and Mr. Osborn (Boland decl. at ¶¶ 3–11). A comparison of these
scanned images with the scanned images I made immediately after Mr.
Argentieri produced the Work for Hire document for inspection on July 14 show
a significant difference in the appearance of the document.
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29. The illustration to the right compares an image of the interlineations and initials
on page 1 of the Work for Hire
document taken from the scanned
1/13/11, 9:53 AM — Aginsky

image of page 1 from Dr. Aginsky
(file dated January 13, 2011, 9:53

7/14/11, 9:18 AM — Tytell

AM) with the similar portion of the

scanned image of page 1 that I made (file dated July 14, 2011, 9:18 AM).
30. The illustration to the right compares an image of the signatures and dates on
page 2 of the Work for Hire document taken
from the scanned image of page 2 from Dr.
Aginsky (file dated January 13, 2011, 10:05
AM) with the similar portion of the scanned
image of page 2 that I made (file dated July

1/13/11, 10:05 AM — Aginsky

14, 2011, 9:22 AM).
31. These images show that significant changes
in the appearance of the writing ink, as well
as the paper, occurred sometime after the
scanning of the documents by Plaintiff’s

7/14/11, 9:22 AM — Tytell

expert on January 13, 2011, and sometime prior to Mr. Argentieri producing the
Work for Hire document for examination on the morning of July 14, 2011.
32. None of Plaintiff’s experts was present on the morning of July 14, 2011, to see
the condition of the Work for Hire document when Mr. Argentieri first provided
it for examination. Mr. Blanco did not actually view the document until July 15,
2011 (Blanco decl. at ¶12). Mr. Stewart did not actually examine the document
until July 25, 2011 (Stewart decl. at ¶18).
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33. Mr. Stewart states in his declaration the he relied on selected portions of the
Video as the basis for his opinions about the condition of the Work for Hire
document on July 14, 2011, at the commencement of examinations by
Defendants’ experts and subsequently. (Stewart decl. at ¶¶23, 24, 27).
34. Mr. Stewart's reliance on these Video images to draw a "logical conclusion" about
the appearance of these documents is inappropriate and wrong. Colors and
brightness on video can fluctuate with factors such as the type of lighting
(natural or artificial, incandescent or fluorescent), the white balance on the
camera, changes in camera focus and aperture, and others.
35. The clip embedded in the Plaintiff's Memo (at p. 7) does not accurately reproduce
the condition of the Work for Hire document or its visual appearance relative to
the Specification document on the morning of July 14, 2011.
36. A combination of factors (e.g., the bright overhead lighting of the Harris Beach
conference room, the dynamic range present in the scene in front of the camera,
and the capability of the camera to record it) resulted in overexposed, washed-out
images of documents in certain areas of the frame in many segments of the
Video.
37. In the video clip embedded in the Plaintiff's Memo (at p. 7) the two pieces of
paper placed on the conference table by Mr. Argentieri are so washed out that
one cannot determine which piece of paper is page 1 and which is page 2; one
cannot even be sure if the pages are face-up or face-down on the table, if those
two pages actually are the Work for Hire document, or if there are just two blank
sheets of paper on the table.
38. The problem with relying upon the video clip embedded in the Plaintiff's Memo
(at p. 7) to evaluate the appearance of the documents is again made apparent
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just a few minutes later when page 2 of the Work for Hire document is moved
across the table to the right side of the frame. As the page is moved, its
appearance darkens and yellows, and when it comes to rest next to the
Specification document one can see that this page of the Work for Hire document
is darker and yellower than the Specification document next to it. Video at
09:16:10–29. At that point, it becomes apparent that there is, in fact, text on the
document, although the signatures and the dates—in what Dr. Aginsky had
described as "black ballpoint ink"—are not evident. See portion of video still
below.

39. Comparison of the video clip from the morning of July 14, 2011, embedded in the
Plaintiff's Memo (at p. 7) with the Video clip from morning of July 25, 2011,
(Plaintiff's Memo, Ex. B, Doc. 191) is also inappropriate and wrong. Besides the
inherent lack of accurate reproduction of the documents in the July 14, 2011,
video clip discussed above, the differences between the harsh overhead lighting
of the Harris Beach conference room and the softer, more even lighting, which
included natural light from the windows, of the Edelson McGuire conference
room affects the appearance of the Work for Hire document on the video.
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40.

I have also reviewed a scan of the Work for Hire document taken by Mr. Stewart
on

July 25,2011,. Based on that scan, the Work for Hire document does not

appear to have undergone any further deterioration from the time I first saw and
scanned

I

it on the morning

of JuIy 74, 201L.

declare under penalty of perjury that the foregoing is true and correct. Executed

this 28th day of November 2017, in New York, New York.

Tytell

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