Ceglia v. Zuckerberg et al

Filing 261

REPLY to Response to Motion re 201 MOTION to Vacate 83 Order granting Defendants one-side expedited discovery filed by Paul D. Ceglia. (Attachments: # 1 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.

REPLY TO RESPONSE TO
MOTION TO END EXPEDITED
DISCOVERY

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

MEMORANDUM

INTRODUCTION
Defendants begin their Omnibus response by violating Rule 11(b)(3)
repeatedly. By way of example, but by no means exhaustive, consider the following
statements by Mr. Snyder in Defendants’ response:
1. “[Ceglia] [h]aving been caught tampering with and destroying critical
evidence….” Doc. No 237 at 1.
2. “[Ceglia] [h]aving been caught baking the fake contract in an attempt to give it an
“aged” appearance and prevent ink dating….” Id.
3. “[Ceglia] seeks to conceal the indisputable and overwhelming evidence of his
fraud….” Id. Emphasis added.
4. “Every time Ceglia gets caught red-handed committing some new act of litigation

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fraud….” Id.
5. “Ceglia is desperate to portray this as a case of dueling experts, when in fact the
irrefutable evidence leaves no room for debate….” Id. Emphasis added.
LAW AND ARGUMENT
The court should consider counsel’s argument by comparing statements
versus reality. “Even at that time, Defendants had overwhelming evidence of
litigation fraud.” Id. at 3. Of course, as of December 7, 2011, Defendants have
produced no evidence of litigation fraud. Meanwhile, Defendants, Mr. Snyder and
the Orrick Law Firm have acknowledged fraud and are facing sanctions looming
over these proceedings. Doc. No. 232.
Defendants argument is that Expedited Discovery should continue because
Mr. Ceglia has not complied. Id. at 4. Meanwhile, Defendants are involved in an
ever-widening demand for information designed to never enable compliance by Mr.
Ceglia. They are seeking to avoid confronting the facts and, instead, persuade this
court to dismiss this case procedurally. Ironically, Defendants abandoned their
pursuit of files from two experts, Blanco and Stewart and cancelled without
explanation their appointment to extract data from another expert, Mr. Speckin. As
to one of the lawyer targets of their file gathering bonanza, Mr. Grable at Connors
and Vilardo, they accepted files from him on CD accompanied by screenshots of the
meta data for those files. Their arguments for non-compliance are being whittled
down to the most innocuous and borderline manufactured.
Defendants do not argue and cannot explain why this case will still be
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suitable for Expedited Discovery even when their expert reports are provided.
HOW WE GOT HERE
This court reluctantly granted expedited discovery reliant on a series of
promises from Snyder and Defendants. At the June 30, 2011 hearing, Snyder
detailed a list of document examination tasks that he promised would reveal the
Facebook Contract to be fake. “Because the testing that is done, ink extractions,
toner extractions, paper extractions are accepted forensic techniques….” Doc. No.
94 at 122. He opined that Expedited Discovery would enable his experts to “prove,
for example, that a toner or ink or paper fiber didn’t exist [in 2003].” Id. at 37.
Snyder presented the declaration of Frank Romano calling the Facebook Contract
an “amateurish forgery.” Doc. No. 48 at ¶16. The court then correctly questioned
Snyder asking “Why do [the experts] need to see it through expedited discovery?”
Doc. No. 94 at 33. Snyder replied, “[T]here are tests that can be done
microscopically in terms of paper and toner. There are optical lights that can be
used to see differences in ink, paper and opaqueness of the pages…..[I]nk
extractions [can] identify whether the ink is the same on both pages and how old it
is. There are differences in paper fibers….” Id. at 33-34. The useless nature of the
testing is evident in Snyder’s pre-testing proclamation to the court that “[T]here’s
no chance that any of our experts will change their view.” Id. This shows the
inability of Defendants and their counsel to confront reality. Before the experts
conducted any tests on the actual Facebook Contract, Snyder told this court there
was no way they would conclude anything but what was helpful to Defendants.
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That is not commenting about the bias in his experts, but their willingness to game
the system and reach conclusions helpful to Defendants despite the evidence.
All of the above tests, and more, are completed. None of Facebook’s current
experts are willing to declare the Facebook Contract is fake. In fact, one of their
experts that had previously made the “amateurish forgery” claim, has now pulled
back and offered nothing to bolster that claim despite having ten hours to examine
the actual document on July 14, 2011. It is not difficult to know why. Defendants’
experts are not reaching the conclusions that Defendants want them to reach.
Mr. Ceglia has provided declarations by two highly qualified experts, one of
whom trained Defendants’ expert Gerald LaPorte. They concur in the complete
absence of any indicia of fraud in the Facebook Contract. No matter what
authentication opinion Defendants experts produce it can do no more than become,
as this court noted early on in this litigation, dueling experts.
Defendants and their counsel have fraudulently held out on Plaintiff, hiding
and attempting to destroy evidence, continually slamming Plaintiff without any
proof at all. The court has given Defendants and their counsel wide latitude,
unprecedented latitude for this court,
FAILED PROMISES
This court was promised by Defendants that Expedited Discovery would
bring a quick resolution to this matter. Doc. No. 94 at 51. It has not. Defendants
promised all experts would agree that the Facebook Contract was a fake. They
have not. They promised the emails Mr. Ceglia exchanged with Defendant
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Zuckerberg would be proven frauds. They have failed.
We have shown this court that if anything, Defendants are struggling with
the fact that their experts agree with ours. Our experts’ declarations are now in,
answering the questions Snyder himself needed to be answered. No such smoking
gun exists, only evidence of additional frauds committed by Defendants.
EXPEDITED DISCOVERY PREMISED ON NOW FAILED PROMISES
Defendants promised they would quickly dispose of this case proving the
Facebook Contract and associated emails were fakes. They bolstered those initial
promises which lured the court into the “unusual request” (Doc. No. 94 at 50) of
Expedited Discovery by claiming they have found the “smoking gun” real contract.
Even Defendant Zuckerberg will not back them up on this claim with a declaration.
PENDING FRAUD RULINGS ARE RELEVANT
It is important to consider the context for all of Defendants’ claims of Ceglia’s
non-compliance. Defendants argue Mr. Ceglia’s non-compliance with orders that
Defendants and their counsel have obtained and maintained via fraud.
They obtained the initial order without disclosing the existence of relevant
evidence. Doc. No. 232. They claimed Mr. Ceglia’s emails were frauds because of
their absence in Zuckerberg’s email record, knowing their argument was a fraud.
Id. They actively sought to destroy relevant evidence throughout this litigation
while blasting Mr. Ceglia at every opportunity for unproven claims of fraud. Id.
To allow Expedited Discovery to continue in the face of this fraud rewards
Defendants for the most egregious conduct attorneys and parties can engage in
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during federal litigation. They have scored the hat trick of fraud, hiding evidence,
false arguments in contradiction to that hidden evidence and attempting to destroy
evidence. The continuation of Expedited Discovery to the benefit of Defendants and
their counsel while they commit these frauds, and perhaps other frauds to be
uncovered, profoundly and unfairly prejudices Plaintiff.
Finally, there is no reason for this court to credit any statements, arguments,
assertions of fact, etc. made by Defendants or their counsel Mr. Snyder with any
validity because of their acknowledged fraud. The complete breakdown of respect
for this court’s authority by Defendant Zuckerberg (known in previous cases to be
dishonest, falsifying documents, etc) Defendant Facebook (known to glorify
criminals by hiring them following the publication of their criminal acts) Defense
Counsel Oren Snyder (admitting to knowing about, failing to disclose and filing
pleadings and making fraudulent arguments involving suppressed evidence) and cocounsel, the Orrick Law Firm entitles Defendants to not one more day of Expedited
Discovery. The conduct summarized in the previous sentence is the subject of a list
of additional sanctions sought in Doc. No. 232.
The attempted spoliation of relevant evidence (Doc. No. 232), the contract
spoliation, the email spoliation and the fraud by Defendants and their counsel Mr.
Snyder are independent grounds by which the court should end expedited

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discovery.1 It is appropriate in light of the above for a 16(b) conference to be held
and for this case to be put on a normal discovery track.
Another support for expedited discovery was Defense counsel’s assertion that
Frank Romano, a so-called expert, declared the Facebook Contract an “amateurish
forgery.” Doc. No. 94 at 61. Of course, this esteemed expert concocted this opinion
from viewing a photocopy of the Facebook Contract. One wonders why he bothered
to appear at all on July 14, 2011 to examine the document. He has so easily
dismissed it as a fraud, it was surely redundant for him to examine the actual
document. Suspiciously, Mr. Romano’s voice and his declaration are nowhere to be
found in Defendants’ submissions. Has his opinion faltered now that he is no longer
examining a photocopy? Nowhere in the ASTM standards manuals submitted by
Defendants’ experts is it declared that viewing a photocopy is suitable evidence for
an expert to speak on a document’s authenticity. Amidst their flurry of expert
declarations, not one of them even attempts to declare the Facebook Contract a
fraud. It seems that Romano’s unsupported and unsupportable “amateurish
forgery” armchair theory is awfully challenging to confirm once the experts examine
the actual document.
CONCLUSION
Instead of confronting facts, the Defendants spew adjectives without

Additional sanctions including a Default Judgment in favor of Plaintiff, dismissal of Defense
counsel from the case, jury instruction that the contract is valid and the payment of all Plaintiff
expert and attorney fees and expenses to date are all reasonable sanctions Plaintiff will seek for
Defendants and their counsel’s admitted fraud on this court and on Plaintiff.
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evidence. They continue to move the goal post of demanded information, focusing
on the irrelevant at nearly every turn (native format copies of all reference images
of the Facebook Contract captured by Ceglia’s experts) while themselves failing to
present any evidence at all.
They are flailing about in this sea of digital information hoping against
reality that somehow that digital information is going to completely disprove that a
paper contract is authentic.

There is no reasonable belief Defendants and their

counsel can now have they any evidence they produce is sufficient to meet the
standard of clear and convincing evidence of fraud on this court. Ceglia, however,
has an excess of such evidence revealing Defendants and their counsel’s fraud on
the court on multiple occasions and in multiple ways. For all of their overblown
promises, all Defendants have now is results of testing completed five months ago
that they have suspiciously not presented.

Even if they present those testing

results today or some day soon, the best that can be said about them is they
contradict Plaintiff’s experts. That, after all, is the stuff of trials, not dismissals for
fraud and especially not dismissals for fraud after only one side has had discovery
while the other has suppressed evidence, mislead the court in arguments while
failing to disclose that evidence and being caught in the act of attempting to destroy
that evidence.
CONCLUSION

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For the foregoing reasons, Mr. Ceglia respectfully requests this court issue an
order that effectively ends expedited discovery and schedules all necessary events to
transition this case to the regular discovery schedule.
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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