Ceglia v. Zuckerberg et al

Filing 266

MEMORANDUM/BRIEF Concerning the December 13 Hearing by Facebook, Inc., Mark Elliot Zuckerberg. (Attachments: # 1 Certificate of Service)(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’ SUPPLEMENTAL BRIEF
CONCERNING THE DECEMBER 13 HEARING

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]
December 12, 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
MOTIONS BEFORE THE COURT ............................................................................................... 2
STATUS OF DISCOVERY AND FUTURE PROCEEDINGS..................................................... 6

INTRODUCTION
Defendants respectfully submit this supplemental brief to assist the Court with the
upcoming December 13 hearing by providing an overview of the eight pending motions, which
span nearly 80 docket entries.
Currently before the Court are two motions filed by Defendants: a motion to compel
Ceglia’s compliance with the expedited discovery orders (Doc. No. 245), and a motion to strike
the fraudulently-procured Gianadda declaration and impose sanctions on Dean Boland for his
misconduct in deceiving the videographer (Doc. No. 217). Both of those motions are ripe for
decision and should be addressed at the outset of the hearing.
Ceglia, in contrast, has filed a barrage of so-called “prohibition” and sanctions motions,
many of which are premature and unripe, and all of which are frivolous. This Court should deny
them as meritless and unsubstantiated attempts to preclude Defendants from presenting the Court
with the fruits of the expedited discovery that this Court authorized on July 1. Indeed, the
discovery ordered by this Court has revealed extensive evidence of fraud by Ceglia and his
lawyers, including (among other things) the destruction of critical evidence, the submission of
false declarations, the “baking” of the Work for Hire agreement, the corrupt efforts to trick the
videographer into signing a misleading declaration, and of course the discovery of the authentic
StreetFax contract on Ceglia’s own computer. Ceglia’s suggestion that he has “proven” the
authenticity of his bogus Work for Hire agreement and the fake “emails” in his First Amended
Complaint — and that Defendants must be precluded from even making any argument to the
contrary — is ludicrous on its face and should be summarily rejected.
Ceglia offers no credible evidence that even remotely supports his fantastical claims that
the Work for Hire agreement and fake emails are genuine. But even if he had, the Court should
deny his motions as premature and unripe. Specifically, four of his motions — Doc. Nos. 199
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(sanctions for alleged email spoliation), 229 (precluding mention of the authentic contract), 224
(precluding arguments that “emails” in First Amended Complaint are fake), and 189 (sanctions
for alleged discoloration of Work for Hire agreement by Defendants’ experts) — improperly
seek immediate rulings concerning ultimate issues in this case. Ceglia’s motions are a
transparent and backdoor attempt to circumvent the expedited discovery process by seeking early
rulings based on an incomplete evidentiary record. Under the guise of requests for “prohibition”
orders and sanctions, Ceglia is attempting to hijack the discovery process and schedule directed
by this Court in its July 1 order. In the event it does not deny all of his motions outright, this
Court should decline Ceglia’s request to resolve on an incomplete record, and in the context of
Ceglia’s baseless “prohibition” and sanctions motions, the very issues the expedited discovery
was intended to address.
This is not the first time Ceglia has attempted to disrupt the expedited discovery process:
he has unsuccessfully challenged the July 1 order on numerous prior occasions (Doc. Nos. 116,
120, 126, 134, 164) and has another motion to vacate pending (Doc. No. 202, discussed below).
This Court has rejected all of Ceglia’s previous efforts to gut the July 1 order, and should reject
this one as well. Pursuant to the schedule ordered by this Court, Defendants intend to present
their experts’ findings concerning Ceglia’s litigation fraud and simultaneously move to dismiss
once Ceglia is in compliance with the discovery orders.
MOTIONS BEFORE THE COURT
Defendants’ Motions
Defendants’ Fourth Motion to Compel Concerning the Grant Electronic Files
(Doc. No. 245)
Defendants seek an order compelling Ceglia to comply with the Court’s July 1 and
August 18, 2011 orders by directing him to identify and produce all electronic files in the

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possession of Jerry Grant, a computer forensics expert whom Ceglia had never before identified,
and to certify to the production of all such files.
Defendants’ Motion to Strike the Gianadda Declaration and for Sanctions
(Doc. No. 217)
Defendants seek an order striking the fraudulently-procured Gianadda declaration (Doc.
No. 212 filed by Ceglia on November 11, 2011) and imposing sanctions on Ceglia’s counsel
Dean Boland for his deceit and subterfuge in tricking the videographer into signing a misleading
declaration, and then compounding his misconduct by filing his own declaration containing
numerous false statements and attacks on Gianadda’s integrity.
Ceglia’s Motions
Ceglia’s Motion to Vacate Expedited Order Granting Defendants One-Sided
Expedited Discovery
(Doc. No. 202)
Ceglia seeks an order vacating the Court’s order granting expedited discovery and
scheduling all hearings necessary to begin regular discovery.
Defendants’ Response: This motion is the latest in a long series of efforts by Ceglia to
overturn or otherwise challenge the expedited discovery order. It should be denied because the
reason for the expedited discovery — obtaining evidence to establish that Ceglia has forged
documents and emails to manufacture his claims — has only become more pressing as more and
more evidence of fraud comes to light as a result of this Court’s discovery orders. Moreover,
Ceglia still has not fully complied with this Court’s orders, and canceling expedited discovery
before it is complete would reward Ceglia for his ongoing, contumacious defiance of this Court’s
orders.

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Ceglia’s Motion for Sanctions for Spoliation of Email by Defendant Zuckerberg
(Doc. No. 199)
Ceglia seeks an order prohibiting Defendants from disputing the authenticity of the
“emails” quoted in the First Amended Complaint, and granting Ceglia discovery of all copies of
emails from Zuckerberg’s Harvard account, on the theory that Defendants’ expert Bryan Rose
supposedly admitted that emails were deleted from the account.
Defendants’ Response: The motion — which reargues a prior motion that this Court has
already considered and rejected (see Doc. Nos. 58 (Ceglia brief raising this claim); 83 (order
denying Ceglia motion)) — is based entirely on a false characterization of the Rose declaration
and should be denied because that declaration does not state that emails were deleted from the
Harvard account. In the alternative, the motion should be denied as premature, as this Court’s
expedited discovery order does not require Defendants to produce the Harvard emails until
Ceglia has fully complied with his obligations.
Ceglia’s Motion for an Order Prohibiting Defendants’ Reliance on Inadmissible
Evidence in Any Dispositive Motion
(Doc. No. 229)
Ceglia seeks an order prohibiting Defendants from mentioning the emails and attached
authentic contract that Ceglia sent to Jim Kole from the [e-mail] account on March
3, 2004.
Defendants’ Response: There is absolutely no reason to prevent Defendants from
presenting the Court with this critical, smoking-gun evidence — the authentic StreetFax contract
— which they obtained as a result of the expedited discovery order. Indeed, the very purpose of
the expedited discovery order was to authorize Defendants to obtain evidence that the Work for
Hire agreement is a forgery. Ceglia’s motion attempts to make a brazen end-run around the
procedure ordered by this Court. Once Ceglia has complied with his discovery obligations,

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Defendants will present the Court with all the evidence of Ceglia’s fraud, including the evidence
that they found the authentic StreetFax contract both in Ceglia’s old email account and on the
server of the international law firm Sidley Austin.
Ceglia’s Motion for Order Prohibiting Defendants from Reliance on Argument that
Ceglia-Zuckerberg Email Exchanges in the Amended Complaint Are Frauds in Any
Dispositive Motion Filed During or at the End of Expedited Discovery
(Doc. No. 224)
Ceglia seeks an order prohibiting Defendants from disputing the authenticity of the
“emails” quoted in the First Amended Complaint on the basis that Ceglia has shown that the
emails are not fraudulent, and granting Ceglia expedited discovery into Zuckerberg’s email
accounts.
Defendants’ Response: Here too, a key purpose of expedited discovery was to uncover
evidence that the “emails” are fake, and Defendants should not be barred from presenting this
evidence to the Court at the appropriate time. No reasonable person could believe that the Word
documents on Ceglia’s collection of floppy disks are actually cut-and-pasted email exchanges he
had with Zuckerberg, and the “evidence” of purported authenticity in Ceglia’s motion does not
even come close to making his delusional claims legitimate. At a minimum, Ceglia’s motion
should be denied as an improper attempt to lure this Court into a premature ruling based on an
incomplete record and to nullify the expedited discovery process ordered by this Court.
Ceglia’s Motion for Sanctions for Spoliation of Evidence by Defendants
(Doc. No. 189)
Ceglia seeks an order imposing a default judgment or other sanctions against Defendants
for their experts having allegedly discolored the Work for Hire agreement.
Defendants’ Response: Defendants have demonstrated through conclusive physical
evidence that Ceglia (and/or others working in concert with him) tampered with the Work for

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Hire agreement by “baking” it before it was produced to Defendants’ experts for inspection.
Ceglia’s motion should be denied as a frivolous attempt to blame Defendants for wrongdoing
that Ceglia himself committed. At a minimum, the Court should defer ruling on this motion until
Ceglia has fully complied with the expedited discovery orders and Defendants are able to place
before the Court the complete evidentiary record concerning Ceglia’s attempt to artificially age
the contract.
Ceglia’s Motion for Sanctions for Spoliation of Facebook Contract by Defendants
(Doc. No. 214)
Ceglia seeks an order prohibiting Defendants from challenging the authenticity of the
Work for Hire agreement based on their experts’ alleged spoliation of the document by handling
it without gloves.
Defendants’ Response: The motion should be denied because Ceglia’s lawyers and
experts never suggested that there might be relevant fingerprint evidence on the document and in
fact handled it repeatedly themselves without gloves during the examination, thus waiving this
argument entirely.
STATUS OF DISCOVERY AND FUTURE PROCEEDINGS
Ceglia and his lawyers continue to obstruct discovery — more than six months after this
Court directed him to comply. Ceglia still has not fully obeyed this Court’s expedited discovery
orders. Defendants hope that Ceglia will come into compliance without the need for further
Court intervention, but in the event Ceglia continues to refuse to fully comply, Defendants may
need to seek judicial assistance.1

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The current outstanding issues are as follows:
(1) MSN Hotmail consent form – Paragraph 10 of this Court’s November 3, 2011 Order ("Order") required
Plaintiff to execute a consent form for the inspection of his msn.com webmail account and to facilitate access to this

[Footnote continued on next page]
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As this Court directed in its July 1 order, once Ceglia has fully complied with his
discovery obligations, Defendants will submit expert reports detailing the evidence and their
findings. At the same time, Defendants will move to dismiss this lawsuit based on Ceglia’s
litigation fraud, his tampering with and destroying critical evidence, and his extensive record of
discovery misconduct.

[Footnote continued from previous page]
account. Plaintiff provided consent on the approved form but Microsoft has stated that the content on the form
could not be verified. Defendants subsequently twice requested, on December 1 and 7, 2011, that Plaintiff reexecute a consent form. Plaintiff’s counsel Dean Boland promised to provide that re-executed form by the morning
of December 8, 2011. As of the time of this submission, he has not done so.
(2) Capsicum Group LLP electronic files acquisition – Paragraph 11 of the Order authorizes Stroz
Friedberg to acquire from Plaintiff’s experts and attorneys all files, in original native-file format, that were produced
or are to be produced pursuant to the Court’s expedited discovery orders, which includes the relevant agreements
and emails. An attorney for Capsicum, one of Plaintiff’s prior experts, notified counsel that Capsicum intended to
make its files available to Stroz Friedberg on December 6, 2011. After an apparent objection by Plaintiff’s counsel
Dean Boland, that attorney notified Defendants’ counsel on December 8th that Capsicum now intends to make
available only “contracts,” a patently incorrect reading of this Court’s discovery orders.
(3) Paul Argentieri electronic files acquisition – Pursuant to paragraph 11 of the Order, Mr. Argentieri
made available to Stroz Friedberg a select group of electronic files in their native-file format but did not provide
access to certain other documents that were responsive to the Court’s discovery orders and which Mr. Argentieri
acknowledged possessing, such as the “Lawsuit Overview.pdf” document that Mr. Argentieri represented to the
Court that he wrote. In response to Defendants’ demand for that and any other improperly withheld documents, on
November 26, 2011, Mr. Argentieri offered to have his IT consultant, Ed Flaitz, provide the document to Stroz
Friedberg. Defendants accepted Mr. Argentieri’s proposal as an accommodation, reserving the right to have Stroz
Friedberg acquire the document directly. Stroz Friedberg is in communication with Mr. Flaitz and Mr. Argentieri to
try to resolve this issue.
(4) Lake, A.P.C. electronic files acquisition – Plaintiff’s former counsel Nathan Shaman informed Stroz
Friedberg that his firm would make available for acquisition the electronic files that Stroz Friedberg identified; of
course, pursuant to the Order, Plaintiff’s experts and attorneys must themselves identify and make available the files
that must be produced pursuant to the Court’s expedited discovery orders. Stroz Friedberg is in communication with
Mr. Shaman to try to resolve this issue.

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Dated:

New York, New York
December 12, 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.

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