Ceglia v. Zuckerberg et al

Filing 276

RESPONSE in Opposition re 231 MOTION for Temporary Restraining Order Notice of Motion MOTION for Sanctions Notice of Motion 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’ MEMORANDUM IN OPPOSITION TO CEGLIA’S MOTION FOR
SANCTIONS AGAINST DEFENDANTS AND DEFENSE COUNSEL

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 21, 2011

Orin Snyder
Alexander H. Southwell
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

DEFENDANTS’ MEMORANDUM IN OPPOSITION
Late on Wednesday, November 23, 2011 — the day before Thanksgiving — Plaintiff
Paul Ceglia filed an ex parte “emergency” application for a temporary restraining order. Ceglia
contended that Defendants and their lawyers were seeking the destruction of electronic evidence
that had been produced in the ConnectU litigation and possessed by Parmet and Associates, a
computer forensic consulting firm hired by the ConnectU plaintiffs.
This was a fake emergency and Ceglia knew it. The “evidence” in question consisted of
copies of electronic assets — and the protective order providing that all such copies would be
destroyed at the end of the litigation had been on the public docket for months.
But instead of apologizing to the Court and Defendants’ counsel for his frivolous TRO
motion, which he promptly withdrew when Defendants brought the actual facts to this Court’s
attention, Ceglia had the audacity to maintain his demand for sanctions. The sanctions motion is
the latest installment in Ceglia’s “best defense is a good offense” approach to litigation, and
continues his well-established pattern of launching wild and reckless accusations in hopes of
deflecting attention from his own fraud and misconduct. His motion should be summarily
denied.
BACKGROUND
The electronic assets at issue are subject to a protective order entered by the federal
district court in ConnectU. The protective order permitted Parmet and Associates to create
forensic copies of the electronic assets, and required those copies to be destroyed when the case
ends. See Doc. No. 232, Ex. A, ¶¶ 2, 13. Ceglia demanded that this Court issue a TRO to
prevent the ConnectU parties from complying with the terms of the protective order entered by
the Massachusetts federal court.

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Ceglia’s attorney Dean Boland did not serve his TRO papers on Defendants. Instead, he
sent them to the Court and chose not even to email Defendants a courtesy copy. This Court
convened a late-afternoon telephone conference on November 23. Counsel for Defendants stated
that while he obviously did not know what Boland was claiming in his TRO motion (since he
had not seen it), he would investigate Boland’s claims if Boland would share the papers he had
filed ex parte. The Court encouraged Boland to share his filing with Defendants, and Boland
promised to do so. Decl. of Alexander H. Southwell, ¶ 3 (Dec. 21, 2011).
But Boland continued to hide the ball. He ignored Defendants’ repeated requests to keep
his promise to the Court, and filed amended versions of his papers on Friday, November 25,
2011. See Doc. Nos. 231–233. He represented to Defendants that these papers were the same as
the ones he had filed ex parte. See Ex. A to Southwell Decl. But the amended papers differ
from his original papers. For example, the amended papers refer to the November 23 telephone
conference, see, e.g., Doc. No. 232, at 18 — an event that obviously occurred after Boland had
submitted his original ex parte papers.
On Monday, November 28, the Court held another telephone conference on Boland’s
TRO motion. By that time, defense counsel had read the amended papers and had spent
significant time over the holiday weekend investigating his contentions. Upon hearing defense
counsel’s report, the Court declined to enter a scheduling order on the motion, and instead gave
defense counsel two more days to further investigate Boland’s contentions and provide a written
update on the status of the ConnectU litigation. See Doc. No. 234.
On November 30, Defendants told the Court by letter that shortly after the November 28
telephone conference in this case, the plaintiffs in ConnectU withdrew their final post-trial
motions, effectively ending that case and triggering the self-executing provisions of the

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protective order calling for the destruction of the Parmet forensic copies. See Doc. No. 244, at 1.
Defendants’ letter emphasized that the ConnectU protective order required the destruction of
only the Parmet forensic copies — it did not require the destruction of the original electronic
materials, which had been preserved since the beginning of this litigation. See id. The letter also
stated that notwithstanding the destruction provision in the ConnectU protective order, Orrick,
counsel for Facebook in ConnectU, had asked all parties to agree to return the forensic copies to
their original owners, rather than to destroy them. See id. at 1–2.1
Ceglia withdrew his TRO request the next day. Doc. No. 246, at 2. But he not only
refused to withdraw his request for sanctions, he expanded his request. Whereas Ceglia
originally sought sanctions against only the Orrick firm, which represented Defendants in
ConnectU, he now claimed that Orin Snyder and Alexander H. Southwell made false statements
during telephone conferences with this court and should be sanctioned as well.
Defendants’ counsel promptly responded to correct Ceglia’s blatant misstatements. See
Letter from O. Snyder to Foschio, J. (Dec. 2, 2011). They explained that Mr. Snyder’s statement
during the November 23 call that he “had no idea what [Mr. Boland] was talking about” referred
to his lack of knowledge concerning the contents of Mr. Boland’s ex parte TRO application,
which he had not been provided by Mr. Boland as of the time the Court convened the telephonic
hearing on the “emergency” motion on Thanksgiving evening. Neither Mr. Snyder nor Mr.
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Defendants have since learned that attorneys at the law firm of Quinn Emanuel, which
represented some of the plaintiffs in ConnectU, have informed counsel for Defendants in
ConnectU that they would prefer to destroy some of their copies rather than return them to their
original owners due to concerns about work product privilege. It appears, however, that such
items from Defendants Zuckerberg or Facebook in Quinn Emanuel’s possession are copies of
materials produced by Defendants during the course of regular discovery. We advised the Court
of this by letter on December 21, 2011, as an update to our November 30, 2011 report.

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Southwell ever said or implied that they “had no idea” of the existence of the ConnectU forensic
copies. Id.
ARGUMENT
Ceglia fails to identify anything that would even remotely support sanctions, and the
Court should summarily deny his frivolous and harassing motion.
First, Ceglia argues that Defendants failed to disclose the existence of the Parmet copies
from the ConnectU litigation. Doc. No. 232, at 12. But Ceglia fails to show that Defendants had
a duty to disclose these materials, which are not even in Defendants’ possession. This case is in
the expedited discovery stage, and Defendants have no duty under the Federal Rules to identify
and disclose evidence to Plaintiff (other than the emails from the Harvard server, which
Defendants will produce once Ceglia has fully complied with this Court’s orders).
Second, Ceglia argues that Defendants and their experts made misleading statements
concerning the scope of their search for relevant emails. According to Ceglia, “Defendants have
argued in this case on multiple occasions that their computer forensic experts have
comprehensively searched Defendant Zuckerberg’s email and other electronic communications
records,” Doc. No. 232, at 13 (citing Doc. No. 47 (Decl. of Defs.’ Expert B. Rose)) (emphasis
added), and “Defense counsel Snyder, in filed pleadings in this case, made assurances to the
court about the full search of Mr. Zuckerberg’s electronic assets for email communications,” id.
(citing Doc. No. 45) (emphasis added).
But neither Defendants nor their experts made the representations Ceglia claims — the
underscored language was added by Boland; it did not come from Defendants. The declaration
of Defendants’ expert Bryan Rose (Doc. No. 47) recounts the scope of his searches, and
Defendants’ motion for expedited discovery (Doc. No. 45) accurately summarizes Mr. Rose’s

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declaration. Rose quite clearly explained that he searched Zuckerberg’s Harvard email account;
he simply did not make the broader representations Ceglia claims. As Ceglia himself states in
his motion:
The process through which Zuckerberg’s Harvard emails were obtained
and reviewed is set forth in the attached declaration of Bryan Rose, a former
Assistant United States Attorney. As Mr. Rose explains, the highly-regarded
digital forensics firm Stroz Friedberg obtained a complete and accurate copy of
the entire contents of Zuckerberg’s Harvard University email account, including
both sent and received mail, as the account existed in October 2010. Rose Decl.,
¶ 5. It also obtained a copy of Zuckerberg’s account as it existed in April 2011.
Id., ¶ 4. Stroz Friedberg ran searches on all emails in the account using search
terms containing the words and phrases taken from the purported emails
excerpted in Ceglia’s Amended Complaint. Id., ¶ 7. Based on these searches, Mr.
Rose determined that the purported emails were not in Zuckerberg’s email
account. Id.
Doc. No. 232, at 13 (quoting Doc. No. 45, at 10) (emphasis altered). Contrary to Ceglia’s
claims, Mr. Rose did not represent that he searched both Zuckerberg’s Harvard University email
account as it existed in October 2010 and April 2011 and “other electronic communications
records,” Doc. No. 232, at 13, and also conducted a “full search of Mr. Zuckerberg’s electronic
assets for email communications,” id. Rose examined Zuckerberg’s Harvard account based on
the allegations in the First Amended Complaint that the purported emails were sent while
Zuckerberg was a student at Harvard. In any event, the purported emails do not exist anywhere
other than in Ceglia’s imagination and on the pages of the First Amended Complaint.
Third, Ceglia falsely claims that Defendants “actively sought” the destruction of the
Parmet copies. Plaintiff bases his contentions on two emails written by Monte Cooper, an
attorney at the Menlo Park, California office of the Orrick law firm who represented Facebook
and Zuckerberg in the ConnectU case, to all counsel of record in ConnectU. See Doc. No. 232,
Ex. E and Ex. F. Those emails merely reminded all counsel of their obligations under selfexecuting provisions of the protective order entered by the federal district court to destroy copies
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of confidential information after the case ended, including copies of electronic materials.
Neither Mr. Cooper nor Defendants ever sought destruction of original electronic materials. In
fact, in response to Ceglia’s concerns, Mr. Cooper wrote to all counsel of record in ConnectU
and requested that they return copies of electronic materials subject to the protective order to
their original owners, rather than destroy them. Doc. No. 244, at 1–2.
CONCLUSION
Plaintiffs’ motion for sanctions should be denied.
Dated:

New York, New York
December 21, 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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