Ceglia v. Zuckerberg et al

Filing 269

REPLY to Response to Motion re 243 Fourth MOTION to Compel MOTION to Expedite Hearing filed by Facebook, Inc., Mark Elliot Zuckerberg. (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’ REPLY MEMORANDUM IN SUPPORT OF THEIR FOURTH
MOTION TO COMPEL AND FOR OTHER RELIEF

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]

REPLY MEMORANDUM OF LAW
Ceglia has yet again willfully violated this Court’s expedited discovery orders by failing
to produce evidence that he was specifically ordered to produce—and he admits it in his
response to this motion. In granting Defendants’ first three motions to compel, this Court ruled
that Ceglia had violated its July 1, 2011, and August 18, 2011 Orders in numerous ways: by
concealing USBs and electronic copies of the purported contract, by obstructing court-ordered
testing of the Work for Hire document, by refusing to provide court-ordered consent to the
acquisition of his webmail, and by withholding evidence based on frivolous privilege assertions
and confidentiality designations. See Doc. Nos. 117; 152; 208. In failing to identify a computer
forensic expert named Jerry Grant, or the 41 floppy disks in Grant’s possession, and in failing to
produce these disks, Ceglia has failed to comply with this Court’s clear directive: to itemize in a
sworn declaration and produce “all electronic versions of any emails or purported emails by and
among Defendant Zuckerberg, Plaintiff and/or persons associated with StreetFax.” Doc. No. 117
¶ 2(C). Ceglia did not identify this custodian or these disks until November 17, 2011, in
connection with his one of his baseless prohibition motions. See Doc. No. 224, 226. And Ceglia
still has not produced the disks or filed a complete and accurate declaration.
Instead of contesting the facts supporting Defendants’ motion to compel, Ceglia’s
memorandum in opposition admits them. Ceglia attested that the 41 floppy disks provided to
Jerry Grant contained copies of purported emails between Zuckerberg and Ceglia. See Doc. No.
225 ¶ 12. “Jerry Grant imaged all 41 of those floppy disks.” Doc. No. 265 at 2. “Mr. Grant had
copies of this evidence” when Ceglia filed his August 29 Supplemental Declaration. Doc. No.
265 at 2. Ceglia does not even try to dispute that he concealed the existence of Grant in his
August 29 Supplemental Declaration. Nor could he; that declaration plainly lists only six

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persons as custodians of electronic copies of the purported emails, and—notwithstanding the 41
disks that Ceglia admits were in Grant’s possession—Grant is not one of them. See Doc. No.
176-1, at 23–25. In short, Ceglia does not dispute that the disks are covered by the Court’s July
1 and August 18 Orders, and have not been produced. That is all the Court needs to know to
grant Defendants’ motion.
Ceglia nevertheless tries to excuse his admitted non-compliance by implying ignorance
or forgetfulness. His memorandum in opposition purports to quote a declaration from his lawyer
Paul Argentieri for the proposition that Ceglia gave the 41 disks to Argentieri, who in turn gave
them to Grant (who then made the undisclosed copies at issue here). See Doc. No. 265 at 2. The
memorandum also describes (again based on an Argentieri declaration) the purported subsequent
chain of custody of the 41 original disks: Grant returned them to Argentieri, who gave them to
attorney Richard Scherer (an associate at Lippes Mathias LLP, one of Ceglia’s former law
firms), who gave them to Project Leadership Associates (one of Ceglia’s former e-discovery
vendors), from whom Stroz Friedberg “accessed all 41 floppy disks long before the August
orders and declarations.” Id. Ceglia’s memorandum thus implies that because Ceglia did not
interact directly with Grant, he did not know that Grant made copies of those 41 disks—or, if he
did know about the copies, it was “reasonable” for him to have forgotten about them—and thus
he should not be held responsible for failing to produce them or to identify them in his August 29
Supplemental Declaration:
With all the volume of Electronic Assets already in this case, it is reasonable that
Mr. Ceglia, if he was ever told the whereabouts of these particular 41 floppy disks
from Paul Argentieri to Jerry Grant to Richard Scherer to PLA and produced to
Stroz, neglected to remember that Jerry Grant retained forensic copies of them
while Stroz Friedberg has had access to the originals of these floppy disks.
Id. This excuse is at least thrice flawed.

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First, Ceglia did not file the Argentieri declaration upon which his explanation turns.
Accordingly, the factual assertions in Ceglia’s opposition memorandum lack actual evidentiary
support in the record and should be ignored.
Second, even if the Argentieri declaration existed, it would irreconcilably conflict with
Ceglia’s own statement about how Grant received the 41 original floppy disks. In his November
17 declaration, Ceglia attested, “I [i.e., Ceglia] provided those floppy disks containing the Word
documents with the contents of the [purported] email exchanges to computer forensics expert
Jerry Grant” just “[s]hortly after the filing of the amended complaint.” Doc. No. 225 ¶ 12. This
attestation and Argentieri’s purported attestation cannot both be true; either Ceglia gave the 41
disks to Grant, or Argentieri did. This inconsistency matters: if Ceglia gave the 41 disks to
Grant, as he swore in his (first-filed) November 17 declaration, see Doc. No. 225 ¶ 12, the first
link in his ignorance-or-forgetfulness chain would be destroyed.
Third, even if Argentieri (rather than Ceglia) gave the 41 disks to Grant, Ceglia’s
proffered conclusion is a non-sequitur. Stroz Friedberg has not “accessed all 41 floppy disks
long before the August orders and declarations,” as Ceglia claims. Doc. No. 265 at 2. Stroz may
have accessed the 41 original disks, but it certainly did not access the 41 copies Grant made,
which Ceglia’s brief establishes are still in Grant’s possession and still have not been disclosed.1
More important, Ceglia’s attempt to conflate the 41 original disks now at PLA with the 41 copies
in Grant’s possession flies in the face of this Court’s order. The Order unmistakably requires
Ceglia to produce and itemize “all electronic versions of any emails or purported emails by and
1

Because Stroz Friedberg inspected over 1,000 CDs made available by PLA, see Doc. No.
176-1 ¶¶ 161, 163, Ceglia’s failure to give Defendants the hash values for Grant’s 41 floppy
disks effectively precludes Stroz from determining whether they already had acquired the disks,
as Ceglia contended.

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among Defendant Zuckerberg, Plaintiff and/or persons associated with StreetFax,” Doc. No. 117,
¶ 2(C) (emphasis added)—not just originals, while excluding copies.2 Ceglia admittedly failed
to comply with this plain-language requirement.3
Neither is it “reasonable” to assume, as he contends, “that Mr. Ceglia” merely “neglected
to remember that Jerry Grant retained” the 41 disks that are the subject of Defendants’ motion.
Doc. No. 265 at 2. Were that so, this matter could have been easily resolved without this Court’s
involvement. If this were an issue of mere forgetfulness, there is no apparent reason why Ceglia
would not have simply produced Grant’s 41 disks for inspection and filed an amended
Supplemental Declaration identifying Grant as a custodian immediately upon Defendants’
bringing this error to Ceglia’s attention. But even now, Grant’s 41 disks still have not been
produced, and Ceglia still has not amended his declaration.
Further undermining Ceglia’s ignorance-or-forgetfulness excuse is the fact that it turns
largely on implication instead of affirmative evidence. For example, he asserts that it was
“reasonable that [he] . . . neglected to remember” Grant’s copies, id. at 2—a far cry from actual
evidence supporting that assertion, such as a declaration or affidavit by Ceglia attesting that he in
fact forgot about the disks. Similarly, he contends that “[t]here is no evidence that Mr. Ceglia
intentionally withheld that Mr. Grant had copies of this evidence.” Id. But his November 17
2

See, e.g., 1 Shorter Oxford English Dictionary 55 (6th ed. 2007) (defining “all” as “[t]he
entire number of; the individual constituents of, without exception”); Webster’s Second New
Int’l Dictionary 67 (1936) (defining “all” as “[e]very member or individual component of; each
one of”).
3

Ceglia’s memorandum in opposition in essence characterizes Defendants’ motion as
much ado about mere “copies” of electronic evidence that Defendants have allegedly already
received. This is ironic, in light of Ceglia’s baseless motions seeking sanctions against
Defendants for their alleged failure to, inter alia, disclose the existence of “copies” of electronic
evidence in another case. See, e.g., Doc. Nos. 231–233.

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declarations constitute just that. As discussed, Ceglia attested that in April 2011 he gave Grant
floppy disks containing purported emails, see Doc. No. 225 ¶ 12, and Grant attested that he made
copies of those disks, see Doc. No. 226 ¶ 9. Because Ceglia filed these declarations, he
obviously knew about Grant’s copies some time before November 17. Once again, however,
Ceglia does not affirmatively state that he did not know about Grant’s disks on August 29; he
merely implies that he did not.
In sum, Ceglia’s own brief establishes that on August 29, Grant had 41 floppy disks, at
least some (if not all) of which contained copies of purported emails between Ceglia and
Zuckerberg. Ceglia did not produce those 41 disks in Grant’s possession, and did not identify
Grant as a custodian of such records in his August 29 Supplemental Declaration. His admitted
actions constitute intentional, flagrant violations of this Court’s July 1 and August 18 Orders.

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CONCLUSION
This Court should grant Defendants’ Fourth Motion to Compel. It should order Ceglia to
produce for inspection the 41 floppy disks described in Grant’s declaration (Doc. No. 226 ¶ 9),
and to certify production of those disks. It should also award to Defendants their attorney’s fees
and costs, along with all other appropriate relief.

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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