Ceglia v. Zuckerberg et al

Filing 275

MEMORANDUM/BRIEF re 272 Order on Motion for Sanctions,,, Order on Motion to Strike, Order on Motion for Miscellaneous Relief,, Order on Motion to Compel, Order on Motion to Expedite,,,,,,,,,, 274 Memorandum/Brief by Paul D. Ceglia. (Attachments: # 1 Exhibit A, # 2 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.

BRIEF IN RESPONSE TO
COURT’S ORDER DOC. NO. 272

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

MEMORANDUM
Plaintiff respectfully submits this brief to assist the Court with the
consideration of the effect of Federal Rule of Evidence 1008 (F.R.E.) on Defendant’s
stated intention to file a motion to dismiss for fraud in this case alleging that the
Ceglia-Zuckerberg Contract is fraudulent. See Doc. No. 272.
The defendants have repeatedly threatened the filing of a motion to dismiss
on fraud. Their announced bases have been three:
1. The paper contract between Ceglia and Zuckerberg is a fraud; and
2. The emails exchanged between Ceglia and Zuckerberg attached to Ceglia’s
papers filed in this court are frauds: and
3. Ceglia has either destroyed or concealed evidence, i.e. USB storage devices and
files contained thereon relevant to this case.

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Two questions emerge from the court’s recent order asking the parties to
consider the effect of F.R.E. 1008 on the Defendants’ anticipated motion to dismiss:
One, does F.R.E. 1008 apply to the above issues the Defendants have broadcast will
be the bases of their motion to dismiss on fraud? Two, if F.R.E. 1008 does apply to
those bases, are Defendants permitted, in a motion to dismiss on fraud, to ask the
court to grant that motion after making a finding selecting Defendants’ or Plaintiff’s
proferred evidence as more reliable?
Based upon the case law and factual circumstances of this matter, the answer
to the first question is yes, F.R.E. 1008 does apply to Defendants’ oft-stated bases
for seeking a dismissal on fraud of Ceglia’s claims. For the same reasons, the
answer to the second question is no, asking the court to decide whose evidence is
more reliable or is entitled to more weight is inappropriate under F.R.E. 1008 and
the cases interpreting that rule.
RESTYLED FEDERAL RULES OF EVIDENCE
The federal rules were restyled by the U.S. Supreme Court and submitted to
Congress in April of 2011. They became effective December 1, 2011. The restyled
rules apply to all pending proceedings “insofar as just and practicable.” Exhibit A.
Rule 1008. Functions of the Court and Jury
Ordinarily, the court determines whether the proponent has fulfilled
the factual conditions for admitting other evidence of the content of
a writing, recording, or photograph under Rule 1004 or 1005. But in a
jury trial, the jury determines — in accordance with Rule 104(b) —
any issue about whether:
(a) an asserted writing, recording, or photograph ever existed
(b) another one produced at the trial or hearing is the original; or
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(c) other evidence of content accurately reflects the content.
CASE LAW APPLYING F.R.E. 1008
There are a small number of cases applying F.R.E. 1008. All agree that the
rule applies to circumstances like those in this case. All agree that the application
of the rule to such disputed evidence mandates presenting such disputes to the jury
and not the judge whether by motion or otherwise.
In Remington Arms Co. v. Liberty Mut. Ins. Co., 810 F.Supp. 1420 (D. Del.,
1992) the court “specifically addresse[d] which requirements of Rules 1002 and 1004
are to be apportioned to the court and which are to be apportioned to the finder of
fact.” It did so by analyzing F.R.E. 1008.
The court cited to a “leading treatise on Evidence” which “stresses that the
question of whether or not a party has offered sufficient evidence to prove the
contents of a lost writing is a matter for the trier of fact to decide.” Id.
Emphasis added.
By way of example, the court held “[t]he opponent (of the party offering the
secondary evidence) may attack the sufficiency of the secondary evidence including
the credibility of the witness. This attack, however, goes not to admissibility but to
the weight of the evidence and is a matter for the trier of fact to decide.” Jack B.
Weinstein, Evidence ¶100401. Remington at 1423. This analysis tracks the
Defendants attack on the Ceglia-Zuckerberg email exchanges.

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        In Remington, “all relevant evidence” had been presented to the Court.
However, “[i]t is this drawing of conclusions that creates a triable issue of fact” the
court ruled.
The court denied a summary judgment motion following its F.R.E. 1008
analysis finding that it would be improper for the court to decide that the evidence
presented by either party “as a matter of law...could only support one conclusion.”
Id. In Ceglia’s case, even if the Defendants submit an expert report challenging the
age of the ink on the Ceglia-Zuckerberg contract it does not substantiate that that
the evidence in the case “could only support one conclusion.” Mr. Ceglia’s
declarations and the Plaintiff’s existing expert reports rebut such a conclusion
making an issue, under F.R.E. 1008, suitable for a trier of fact. This is also without
consideration that Plaintiff’s experts are poised to provide overwhelming evidence
that the so called ink aging method Defendants’ experts’ have relied on to claim
they could “age” the ink has never been accepted by any court, is not verifiable, has
not been subjected to peer review, has been widely questioned internationally and is
not used by any government agency.
In U.S.A v. Hatfield, 685 F.Supp.2d 318 (E.D.N.Y., 2010), the court held that
when one party “argu[es] that the [a disputed document] ‘is a fraudulent document,’
the [party] is expressly denying that an authentic original...ever existed.” That
position mirrors the Defendants’ position regarding the Ceglia-Zuckerberg Facebook
contract and the Ceglia-Zuckerberg email exchanges. The court held that such an
argument “precluded the Court from barring the [disputed document’s] admission.”
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The court then cited favorably to F.R.E. 1008 for its holding. F.R.E. 1008
requires this result, the court reasoned, because “it is often true that these
questions determine outcome” and “few would doubt that the jury should decide
whether a written [document] existed for purposes of deciding the case on the
merits.” citing to Christopher B. Mueller and Laird C. Kirkpatrick, 5 Fed. Evid. §
10:40 (3d ed.). “Consequently, the jury, and not the Court, must determine whether
the [disputed document] is genuine.” See also Hill v. City of Houston, 235 F.3d 1339
(5th Cir. 2000) (unpublished) (given Rule 1008, “the question of whether exhibit
eight is a fake or rather, authentic copy was a fact question which was properly
submitted to the jury”); Tinley v. Poly-Triplex Technologies, Inc., 07-CV-1136, 2009
WL 812150, *7 (D.Colo. Mar. 26, 2009) (permitting copy of agreement to be
admitted into evidence, despite genuine questions concerning whether an original
ever existed, because “evidence suggesting that the Tinley Agreement never existed,
as well as the credibility of the parties’ testimony regarding the existence of the
Tinley Agreement are questions for the jury to decide under Rule 1008”).
The court acknowledged that an “attack [on] the legitimacy of the [disputed
document], and the credibility of any evidence...use[d] to try to substantiate it”
would be permissible. But “these questions go to the weight, rather than the
admissibility of the evidence.” citing Tinley, 2009 WL 812150 at *7. This perfectly
mirrors Defendants’ anticipated attacks on the Ceglia Zuckerberg Facebook
contract as well as Ceglia’s email exchanges with Zuckerberg.

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In Servants of Paraclete, Inc. v. Great American Ins., 857 F.Supp. 822
(D.N.M., 1994), a party filing a summary judgment did not dispute the existence of
evidence contradicting their claim regarding the authenticity of a critical document.
It argued that the contrary evidence was “insufficient as a matter of law.” The
court disagreed. It reasoned that “[i]n order for the Court to grant...[the] motion for
summary judgment...the Court would have to find that as a matter of law no
reasonable fact finder could” find in the opposing party’s favor. It cited to F.R.E.
1008 concluding that “Plaintiff has come forward with sufficient evidence to raise a
genuine issue of material fact as to whether it has shown the existence and terms of
[the questioned document]....”
In Fox v. Peck Iron and Metal Co., Inc., 25 B.R. 674 (Bankr.S.D.Cal., 1982)
the “Court [was] faced with determining whether [an] exhibit [was] sufficiently
authenticated to consider it in making findings of fact.” It referred to F.R.E. 1008
in holding that it is “for the jury, as the trier of fact, to make its own determination
of the authenticity of [any] evidence and the weight which it believes it should be
accorded.” Citing to Alexander Dawson, Inc. v. N.L.R.B., 586 F.2d 1300, 1302 (9th
Cir.1978); See Also Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 505 F.Supp.
1190, 1219 (E.Pa.1980).
PLAINTIFF’S “ORIGINAL DOCUMENT” AND DEFENDANTS’ CLAIMED
OTHER ORIGINAL DOCUMENT
Consistent with F.R.E. 1008 (b) Plaintiff has presented to this court and to
the Defendants’ experts an original document - the Ceglia Zuckerberg contract

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regarding Facebook. Plaintiff’s experts have tested the Ceglia-Zuckerberg Facebook
Contract and submitted declarations about their preliminary findings. Doc. Nos.
192 and 194. Those results confirm its authenticity. Defendants have not
presented any expert findings contradicting Plaintiff’s experts’ findings.
Defendants’ counsel have argued that another document, a digital image attached
to an email, is the original Ceglia-Zuckerberg contract. (aka by the Defendants’
counsel as the “smoking gun.”)
It is expected that any motion to dismiss on Fraud by Defendants will include
expert reports challenging Plaintiff’s experts’ findings. In accordance with F.R.E.
1008(b) “the jury determines...any issue about whether” Plaintiff’s original CegliaZuckerberg Facebook Contract or “another one produced at the trial or hearing is
the original....”
As part of a motion to dismiss on fraud after one-sided discovery, the rule
seems to require the court to deny a dismissal on this basis because the necessary
inquiry would invade the province of a jury.
PLAINTIFF’S ASSERTED WRITINGS i.e. EMAILS BETWEEN CEGLIA AND
ZUCKERBERG
Consistent with F.R.E. 1008 (a) Plaintiff has asserted that a writing, i.e.
email exchanges between Ceglia and Zuckerberg, support Ceglia’s claim of a
contract with Zuckerberg regarding Facebook. Ceglia has provided those emails in
native format to Defendants. Plaintiff has subjected those emails to forensic testing
confirming their authenticity. Doc. No. 226.

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Defendants have consistently disputed whether these email exchanges ever
existed and whether Ceglia’s copies of those email exchanges are authentic.
It is expected that any motion to dismiss on Fraud by Defendants will include
expert reports and/or declarations challenging Plaintiff’s claim and that of his
computer forensics expert regarding the authenticity of these emails.
In accordance with F.R.E. 1008(a) “the jury determines...any issue about
whether” Plaintiff’s “asserted writing” i.e. emails, ever existed as Defendants have
and will presumably argue in their motion to dismiss on fraud. F.R.E. 1008(a)
seems to require the court to deny a dismissal on this basis because the necessary
inquiry into this “asserted writing” would invade the province of a jury.
DEFENDANTS’ CLAIMED EVIDENCE OF CONTENT ACCURATELY
REFLECTING THE CONTENT OF THE CEGLIA ZUCKERBERG
FACEBOOK CONTRACT
Consistent with F.R.E. 1008 (c) Plaintiff has asserted that “other evidence” of
the content of the Ceglia-Zuckerberg Facebook Contract “accurately reflects [its]
content.” By way of example, at the December 13, 2011 hearing, Defense Counsel
claimed a defense expert will opine that some part of the ballpoint pen ink on that
contract is “less than two years old.”
It is expected that any motion to dismiss on Fraud by Defendants will include
expert reports and/or declarations asserting that some of the ballpoint ink on the
Ceglia Zuckerberg Facebook Contract is less than two years old.
In accordance with F.R.E. 1008(c) “the jury determines...any issue about
whether” Defendants’ “other evidence of [the] content” of the contract “accurately
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reflects the content” of the contract. F.R.E. 1008(c) seems to require the court to
deny a dismissal on this basis because the necessary inquiry into this “other
evidence of content” would invade the province of a jury. This is especially the case
given Ceglia’s declarations that the contract was signed in 2003, the testing of the
document itself by Plaintiff’s experts and other evidence supporting the authenticity
of the contract.
EXISTING COMPUTERS AND EVIDENCE AVAILABLE AND UNPRODUCED BEARS ON ALL OF THE ABOVE ISSUES
Floating above these issues is the existence of Electronic Assets in the
possession of Defendants (so called “originals” by Defendants) and copies of a range
of Electronic Assets in the possession of a computer expert (Parmet and Associates)
involved in the ConnectU case. The copies of Electronic Assets held by Parmet and
Associates are not limited to computers used by Defendant Zuckerberg. On
December 18, 2011, Plaintiff formally requested Defendants provide Plaintiff access
to those “originals” and “copies” of all the above listed Electronic Assets before the
filing of Defendant’s much advertised motion to dismiss. Defendants declined to
offer such access before filing any motion to dismiss.
The Electronic Assets held by Parmet and Associates are not limited to
computers used by Defendant Zuckerberg for electronic communications and
hosting the facebook website while a freshman at Harvard. Doc. No. 232 at 19-21.
Plaintiff has formally requested Defendants confirm that their preservation
commitment includes All the Electronic Assets in the possession of Parmet and

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Associates, not only those Electronic Assets attributed to Defendant Zuckerberg. In
the event Defendants decline to so confirm, or believe they are without authority to
so confirm, Plaintiff will approach the court to attempt to fashion a remedy.
The three main issues at the start of this brief which are controlled by F.R.E.
1008, are also involved in evidence to be found on the Electronic Assets Defendants
have thus far declined to produce for acquisition by a computer forensic expert for
Plaintiff.
DEFENDANTS’ CLAIM TO HAVE THE REAL ORIGINAL OF THE
CONTRACT
This claim involves not only the terms of the Ceglia-Zuckerberg Facebook
contract but also the means, resources and methods used by whomever created the
digital image contract the Defendants claim is an original. An obvious angle of
inquiry into the Electronic Assets referenced above would be any activity on those
assets that is consistent with the editing and creation of the digital image that
Defendants claim is an authentic original. Further, a myriad of electronic
communications on those Electronic Assets (Instant Messages, emails, blog posts
and others) by Defendant Zuckerberg have obvious bearing on the authenticity of
Plaintiff’s paper contract and Defendants’ digital image document. The same type
of information also has obvious bearing on Defendants’ other two anticipated points
of argument, the authenticity of Ceglia’s email exchanges with Zuckerberg and the
degree to which challenges to the age of the ink on the contract weighs in favor of
Defendants’ motion to dismiss. For example, just one electronic communication by

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Defendant Zuckerberg to anyone explicitly or implicitly referencing his Facebook
contract with Ceglia would be relevant.
THE DEFENDANTS’ PURSUIT OF USB STORAGE DEVICES
Defendants have pursued a list of USB devices they claim were attached to
Ceglia’s computer and his parents’ computers. Among those devices, Defendants
have only indicated that one of those devices may have had two files on it relevant
to this case. Defendants have not offered evidence that those files have never been
produced to them by other means. Plaintiff has, of course, countered that there are
no files on any computer or USB device of any contract relating to this case. This
conflict is again one that is properly resolved by a jury under F.R.E. 1008 as
opposed to Defendants’ anticipated request that the court referee the weight of this
evidence instead of a jury. Additionally, as the court has pointed out, Defendants
have made no showing that any relevant evidence would be found on any USB
devices.
CONCLUSION
The above brief serves the interest of the court and this case by describing
the case law and factual circumstances applicable to the use of F.R.E. 1008. The
existing case law is universally in favor of a denial of Defendants’s anticipated
motion to dismiss on the stated bases. F.R.E. 1008 seems to preclude the court from
invading the role of the jury to make determinations that the Defendants insist this
court make and thereafter dismiss Ceglia’s claim for fraud. The case law and rules
do not permit the Defendants’ to ask the court to assume that role.
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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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