Ceglia v. Zuckerberg et al

Filing 256

REPLY to Response to Motion re 213 MOTION for Sanctions Notice of Motion for Sanctions for Spoliation of Facebook Contract by Defendants Regarding ungloved handling of Facebook Contract filed by Paul D. Ceglia. (Attachments: # 1 Certificate of Service, # 2 Exhibit A)(Boland, Dean)

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

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

Plaintiff,
v.

REPLY TO RESPONSE TO OUR
MOTION REGARDING
SPOLIATION OF CONTRACT
REGARDING MISHANDLING

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

MEMORANDUM
Plaintiff’s motion noting the recklessness bordering on intentional
mishandling of the Facebook Contract without gloves was based on a limited review
of the videotape of Facebook’s experts examination of the Facebook Contract. A
more thorough review of just the first two days of that examination reveals
Facebook’s so-called experts touching the face of the Facebook Contract on more
than 40 occasions without wearing gloves. Exhibit A. This includes touching the
face of the document with their fingertips, fingers, hands and palms without
wearing gloves. Id.
Facebook’s experts “roughly handled” the Facebook Contract with no concern
for its evidentiary value. Declaration of Paul Argentieri at ¶19. Mr. Romano,
Lesnevich and LaPorte would snatch the Facebook Contract when picking it up
with no regard for its integrity. Id. at ¶21.

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THE EXCUSES
Defendants and their experts make excuses for their mishandling of the
Facebook Contract. Those two excuses are summarized as you didn’t tell us to wear
gloves (Doc. No. 237 at 15) and Plaintiff’s experts did it too. Doc. No. 237 at ¶16.
Defendants do not dispute that handling the Facebook Contract without gloves is
spoliation.
ASTM STANDARDS VIOLATED
Facebook expert Lesnevich identifies the American Society for Testing and
Materials as “[setting] the standards for Forensic Document Examiners….” Doc.
No. 239 at ¶8. Defendants submitted the ASTM Standard Guide for Indentation
Examinations. Doc. No. 239-2.
The ASTM standard tells experts that “Chemical processing for latent
[finger]prints generally interferes with indentation examination results.
Indentation examinations should be conducted prior to any chemical processing.
Items should be handled appropriately to avoid compromising subsequent
examinations (for example, with clean cloth gloves).” Doc. No. 239-2 at ¶5.4.
Emphasis added. Obviously, no warning is necessary to experts following ASTM
standards that they ought to wear gloves during document examinations. Facebook
Expert Lesnevich provides us that guidance via the ASTM standards in Doc. No.
239-2. Defendants’ experts submitted multiple standards documents in their
response. Those standards prove Plaintiff’s claim regarding spoliation by handling
of the Facebook Contract without gloves.
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In Defendants’ own submission, Doc. No. 238-3 at ¶5.3 it reads as follows:
5.3 The results of prior storage, handling, testing, or chemical
processing (for example, for latent prints) may interfere with the
ability of the examiner to examine certain characteristics. Whenever
possible, document examinations should be conducted prior to any
chemical processing. Items should be handled appropriately to avoid
compromising subsequent examinations.
In Defendants’ Doc. No. 238-4 at ¶5.4 it reads as follows: “5.4 chemical
processing for latent prints generally interferers with non-destructive paper
examination. paper examinations should be conducted prior to any chemical
processing.”
Paragraph 5.5 of that same document reads: “5.5 Items should be handled as
little as possible prior to and during paper examinations to prevent contamination
such as the introduction of latent prints. The use of clean cloth gloves is
recommended.” Emphasis added.
Paragraph 5.4 of Defendants’ Doc. No. 239-2 reads:
5.4 The results of prior storage, handling, testing, or processing may
interfere with these procedures. Chemical processing for latent
prints generally interferes with indentation examination results.
Indentation examinations should be conducted prior to any chemical
processing. Items should be handled appropriately to avoid
compromising subsequent examinations (for example, with clean
cloth gloves). Emphasis added.
Paragraph 5.5 of Doc. No. 239-2 reads:
5.5  Items should be handled as little as possible prior to EDD
examination to prevent contamination (for example, the
introduction of latent prints and additional indentations). Improper
handling (for example, rubbing the item surface with cloth gloves)
may also impede EDD examination results. Emphasis added.

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“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.” Doc. No. 237 at 15. Again, the ASTM
standard noted above tells experts that fingerprint examination comes after the
examinations that Tytell and Lesnevich were performing. Doc. No. 239-2 at ¶5.4.
Defendants cite no case law or civil rule requiring Plaintiff’s experts or
counsel to monitor and control their experts’ sloppy and borderline incompetent
conduct handling a document underlying a potentially billion dollar claim.
Defendants corollary claim that Plaintiff’s failed to insist on the glove wearing
requirement within the Hard Copy Inspection Protocol is also meritless. It is as if
the Defendants and their counsel believe that they are free to hide and destroy
evidence unless Plaintiff details all the ways they should be restricted from doing
so.
SLOPPY HANDLING OF THE FACEBOOK CONTRACT
During the so-called experts examination of the document in July of this
year, their disrespect for the gravity of the evidence they were handling is evident.
There are no ASTM standards detailing the proper protocol for casually balancing
evidence on a computer tower during examination. Facebook’s hand contaminating
expert Lesnevich’s is unqualified to perform whatever uncontrolled heat tests he
details in his declaration. Doc. No. 239 at ¶18. He, like the rest of Defendants’
experts, are merely running to escape their own documented sloppiness and
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borderline incompetence and perhaps financial liability at some point.
THE DEFLECTION
Defendants seek to deflect their contamination of the Facebook Contract by
alleging that “they did it too” as if we were children on a schoolyard. Lesnevich was
see placing his fingers, heel of his palm and palm directly onto the face of the
Facebook Contract. No expert or attorney for Plaintiff touched the Facebook
Contract without gloves. Declaration of Paul Argentieri at ¶10. Plaintiff’s expert
Jim Blanco touched the Software Specification Contract without gloves on one
occasion, but did not touch the Facebook Contract without gloves. There is simply
no comparison to the manhandling done by Facebook’s experts and any claimed
touching of the Software Specification Contract by Plaintiff’s expert or counsel.
Both defense counsel present during the days of examination and Lesnevich
are highly motivated to shrug off the spoliation of any fingerprint analysis of the
Facebook Contract. It is undoubtedly the case that neither Gibson Dunn nor
Lesnevich have business insurance coverage sufficient to satisfy a multi-billion
dollar claim brought by Facebook or Zuckerberg stemming from the effects of their
mishandling of the Facebook Contract. To say they have an interest in never
admitting anything they did handling this document was a mistake is an
understatement - their careers depend on it.
CONCLUSION
For the foregoing reasons, Mr. Ceglia respectfully requests this court grant
his motion for spoliation and order that an adverse jury instruction will be provided
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to the jury in this case stating that the jury can infer from Facebook’s mishandling
of the Facebook Contract in this way that Mr. Zuckerberg’s fingerprints would have
been recovered from both pages of the document.
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]

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