Ceglia v. Zuckerberg et al

Filing 263

REPLY to Response to Motion re 189 MOTION for Sanctions Memorandum of Law in Support of Motion for Sanctions for Spoliation by Defendants, 188 MOTION for Sanctions Notice of Motion for Sanctions for Spoliation of Evidence by Defendants filed by Paul D. Ceglia. (Attachments: # 1 Certificate of Service, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(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 DEFENDANTS’
RESPONSE TO MOTION FOR
SANCTIONS FOR SPOLIATION
OF THE FACEBOOK CONTRACT

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

MEMORANDUM
Defendants begin their defense of yellowing the Facebook Contract and
fading the ink on the document with a fraud.
LEADING WITH A FALSE ARGUMENT
Recognizing their spoliation defense is dead, the Defendants attempt to show
that the ink on the document was faded at the time their experts first received it for
testing. “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.” Doc. No. 237 at 13.
Emphasis added.
Neither Mr. Laporte or Mr. Lesnevich were present at any time during the
July 14th 2011 testing. Mr. Lesnevich did not arrive until the morning of the

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second day, July 15, 2011, after a full day of testing was completed. Doc. No. 239 at
¶9-10. Mr Laporte arrived on the morning of July 16, 2011 after two full days of
testing was completed. Doc. No. 240 at ¶5. Again in violation of Rule 11, Snyder
claims three Facebook experts confirm the “ink was already faded” on the Facebook
Contract “prior to any testing” when he knows that claim to be false. Only Tytell
captured an image of the Facebook Contract “prior to any testing.”
THE INK FADING HEAD FAKE
Finally, Defendants’ experts’ own images show that Tytell’s rendering of the
ink is inaccurate. The two images in Exhibit B represent Tytell’s image of the ink
on page one and the image of the ink on page one captured by Facebook’s expert
LaPorte after two days of testing. If Tytell’s images are to be believed, then the ink
on page one of the Facebook Contract got darker as Facebook’s experts testing wore
on.
TYTELL’S YELLOWING IMAGES PROVE DEFENDANTS’ SPOLIATION
Defendants’ experts’ images of the Facebook Contract taken 24 hours apart
prove Defendants spoiled it. The left side of the table in Exhibit A shows the first
and second page of the Facebook Contract as it was captured by Facebook’s expert,
Peter Tytell, the morning of its presentation to Facebook’s experts according to his
declaration. Doc. No. 238-2. The right side of the table in Exhibit A shows the first
and second page of the Facebook Contract as it was captured by Facebook’s expert,
Gus Lesnevich, 24 hours after Facebook’s experts’ testing began. Doc. No. 239-1.
There is nothing more to argue regarding who spoiled the document. Defendants’
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experts’ images prove Defendants yellowed, and thereby spoiled, the Facebook
Contract.
TYTELL’S IMAGES COMPARED TO PLAINTIFF’S EXPERTS’ IMAGES
Tytell provides cropped images claiming they show the Facebook Contract
was discolored compared to earlier images of it captured by Plaintiff’s experts. Doc.
No. 237 at 12.
However, Tytell and Defendants omit critical information necessary to make
the Aginsky-Tytell image comparison. What device was used to capture Tytell’s
images? What were the device’s settings? What software and version was
embedded in the device? What software and version was resident on the computer
capturing the image from the device? Was this the first image Tytell captured or
one in a series cherry-picked to appear to be discolored? Was Aginsky’s reference
image captured with the same device under the same conditions or not? Defendants
compare apples to bowling pins and declare it logically useful in another attempt to
mislead this court.
The final sign of image manipulation by Defendants are Tytell’s image of the
Facebook Contract’s two pages. Doc. No. 240-1 purports to be Tytell’s image of both
pages of the Facebook Contract. It is Facebook’s claim about the condition of the
document at the beginning of their testing of it. Yet, look at the difference in color
between the two pages themselves, captured at the same time by the same expert
using the same device(s).

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Facebook Expert Tytell’s
image of
Facebook Contract
on July 14, 2011
with colorations that have
been manipulated

<Page 1

Page 2>

Even within their own expert, Defendants cannot confirm any particular
coloration of the Facebook Contract. The ink on page 1 of Tytell’s image above is
darker than the ink on page 2. What is the cause for this dramatic color difference
within these images of the two pages captured under identical conditions by Tytell?
The court should disregard any comparison between images captured by Plaintiff’s
experts and Tytell’s initial images.
THE YELLOWING IS FROM EXCESSIVE UV LIGHT, NOT BAKING
Sometime “later in [his] examinations” Tytell noted that the “front of each
page had an off-white or ivory cast….” Doc. No. 238 at ¶23. He establishes that the
document was not, when presented to Facebook’s experts, yellowed or manila
colored as it is now. His images on the morning of day one compared to Lesnevich’s
images captured 24 hours later confirm this change to the current yellowed
condition while the Facebook Contract was in Defendants’ experts’ possesion.
Exhibit A.

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None of Defendants’ experts dispute that excessive UV light exposure does
cause paper to yellow. They cannot realistically do so with the large number of peer
reviewed articles establishing the damage excessive UV light does to paper.1 None
of Defendants’ experts declare that the amount of UV exposure they applied to the
Facebook Contract, individually or in the aggregate, was appropriate.2 Defendants
simply chose not to respond to Plaintiff’s evidence about excessive UV exposure.
Defendants’ response omits how many hours each so-called expert subjected
the Facebook Contract to any form of light. There is a door they do not want opened
and the video evidence reveals why. Defendants do not contest that their experts
over-exposed the document. Defendants’ experts avoid the word overexposed which
was used eight times in Plaintiff’s spoliation motion. The answer to who damaged
the document is answered by how it was damaged. Plaintiff has presented the only
evidence of a mechanism by which the Facebook Contract was yellowed.
Defendants present only argument, no evidence, and none of their experts offer
support.
THE UNBAKED BAKING ARGUMENT
Defendants argue, without any expert support, that Ceglia “baked” the
document. Doc. No. 237 at 3, 4, 10. The evidence on the Facebook Contract itself
does not support it either.
Baking in an oven would leave marks or lines where the oven racks bars
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Exhibits D and E are examples of such articles.

2

Exhibit F is only a partial record of the amount of light exposure suffered by the Facebook Contract
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deflected some of the heat leaving portions of the document un-yellowed or less
yellowed in a predictable oven rack pattern. Exhibit C. Secondly, and most
tellingly not present in the Facebook Contract now, baking, i.e. heat exposure,
would inevitably cause both sides of the document to be yellowed. Doc. No. 209 at
¶37-38. Mr. Snyder’s insistence on Ceglia’s baking of the document, it should be
noted, is not supported by a single declaration of anyone. The “how” of the
yellowing and ink damage (excessive UV exposure) has now answered the question
of who did it - Facebook’s experts. The pictures in Exhibit A further confirm the
Facebook Contract was yellowed by Facebook’s experts.
THE SILENT WITNESSES
Having revealed Snyder’s misrepresentations above, it is important for the
court to appreciate the list of people present during Facebook’s experts’ examination
of the Facebook Contract that declined to submit a declaration attesting to the
claimed yellowed condition or faded ink.
Facebook Experts Frank Romano and Albert Lyter, Mr. Zontini (Foster
Freeman representative), Defense Counsel Aycock, Flynn and Southwell all decline
to offer declarations supporting Defendant’s position on anything. Their decision to
remain silent on this most critical issue of spoliation is telling.

Perhaps Mr.

Southwell’s declaration is omitted here because he “fully appreciate[s] the gravity of
making a sworn statement under penalty of perjury.” Doc. No. 11 at ¶3.
PICK A COLOR, ANY COLOR
Snyder continues to change his description of the coloration of the Facebook
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Contract when first presented to Facebook’s experts. He describes the document in
Defendants’ response as having “off white or ivory tinge.” Doc. No. 237 at 11. No
expert declaration supports this and Mr. Snyder was not present to observe this
color. Facts, however, do not impede his argument. On August 17 of this year, Mr.
Snyder described the current hue of the Facebook Contract as “ecru.” Doc. No. 121
at 126. Ecru is a specific, obscure term not chosen from part of every day
conversation indicative of time taken to arrive at a precise word. Ecru is defined as
a greyish pale yellow. See http://en.wikipedia.org/wiki/Ecru. In that same sentence
on August 17th, Mr. Snyder described the hue of the Facebook Contract, post
testing, as having “a faded goldish-brown” Id. Tytell produced images that cannot
agree on the coloration or ink intensity between two pages captured within
moments of each other. Later, in the Gianadda altered declaration obtained after
intense meetings and conversation with defense counsel, Mr. Gianadda is asked to
sign a document identifying the color of the Facebook Contract as a “whitish color”
Doc. No. 218 at ¶3.
Finally, no reference image is provided this court to explain how an “ivory
tinge” is distinct from the color of paper bought in an office supply store today, i.e.
un-aged at all.
RULE 11 VIOLATIONS BY DEFENSE COUNSEL SNYDER
Snyder makes this misleading claim. “[T]here 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
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produced to Defendants’ experts for inspection.” Doc. No. 237 at 6. Emphasis
added.
No Defendant expert supports this. No evidence supports this. It is only
conclusive because Snyder concluded it. It is only indisputable because Snyder does
not dispute himself. The use of the words “indisputable” and “conclusive” in this
argument violates Fed.R.Civ.P. 11(b)(3) as Snyder’s argument has no evidentiary
support. To the contrary, Defendants‘ own experts produced images supporting
Plaintiff’s contract spoliation motion. Exhibit A.

Snyder also made this

unsupported claim: “[S]omeone [Ceglia or others working with him] attempted to
artificially ‘age’ the document and prevent testing of the ink by ‘baking’ it.” Doc.
No. 237 at 11.
No Defense expert supports this. Snyder presented no evidence supporting
this. A Rule 11 sanction is appropriate for this wasted space of a claim.
“This claim [by Ceglia that Facebook’s experts yellowed the document] is
demonstrably false and could not have been made in good faith.” Doc. No. 237 at 11.
No Defense expert even hints that Ceglia’s claim is “demonstrably false.” Snyder
offers no evidence demonstrating its falsity and his accusations of Plaintiff’s
counsel’s bad faith are sanctionable.
“In light of the indisputable fact that the appearance of the document has
been altered while in [Ceglia’s] possession….” Doc. No. 237 at 11. Emphasis added.
Again, Snyder merely offers the word indisputable not demonstrating any
understanding of what it means. This is a false statement evident by the fact that
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motions filed in this case have this very issue in dispute. No Defense expert says
that UV light cannot yellow a document. Common sense tells anyone that excessive
UV light does yellow paper. Facebook’s experts’ own images demonstrate this fact
is indisputable - that is, Defendant’s spoiled the document resulting in its current
yellowed condition.
THE VIDEO EVIDENCE
Defendants confront the video evidence via an unqualified witness, Tytell. In
Doc. No. 238 at ¶34-¶38 Tytell opines about digital video.

His unqualified

comments on digital video are irrelevant. Suspiciously, the digital video expert in
this case, Robert Gianadda offers no declaration supporting Defendants’ argument
to ignore the video evidence. Again, as is his pattern, Snyder makes digital video
claims unsupported by any expert.

“But the low-resolution video simply cannot

capture the faded ink.” Doc. No. 237 at 13. “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.” Doc. No. 237 at 13. No expert
declaration supports either contention.
Tytell claims that “[c]olors and brightness on video can fluctuate….” Doc. No.
238 at ¶34. Tytell fails to account for why when the video is viewed, nothing else
colored yellow or manila in the scene (e.g. a manila envelope on the table adjacent
to a box of yellow latex gloves) fluctuates.
THE GHOST IN THE MACHINE
During Facebook’s experts’ testing, two different document examination
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machines (VSC machines) were used. Doc. No. 238 at ¶27. They were installed by
a Mr. Zontini, a representative of the manufacturer who appeared to have trained
Tytell on how to use them throughout two days. Declaration of Paul Argentieri at
¶13. The examination video shows Zontini apparently fixing or adjusting settings
on the machine. Id. at ¶24. The trainer/installer remained in the room, assisting
Tytell, throughout the two days the machine(s) were used to examine the Facebook
Contract. Id. at ¶25.
BIAS
Typical expert witnesses have a recognized bias favoring the client who hired
them. Here, given the spoliation claim falling in their lap, Facebook’s experts have
two additional biases. They have a professional bias to insure that their intentional
damage to the Facebook Contract is not a stain on their future earning potential.
Finally, and most seriously, it is doubtful any Defense expert has an Errors and
Omissions policy with a limit that is in the billions sufficient to satisfy a potential
claim by Facebook for the ultimate results of their spoliation. The statements of
Facebook’s experts must be regarded with suspicion for those reasons.
CONCLUSION
Plaintiff requests the court restore him to the position he would have been in
before the spoliation. Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998).
An order prohibiting Defendants from disputing the Facebook Contract’s
authenticity is the only way to accomplish that. Such an order is not case-ending.
Facebook can argue statute of limitations violations, a failure of consideration, an
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unconscionable contract, breach by Ceglia and many other defenses in summary
judgment and at trial.
Facebook cannot be rewarded for its spoliation by the gift of a silent
recognition that merely showing the document to the jury in its current state causes
authenticity questions to be raised in jurors’ minds.

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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