Ceglia v. Zuckerberg et al

Filing 295

MEMORANDUM in Support re 294 Fifth MOTION to Compel and For Other Relief 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 OF LAW IN SUPPORT OF THEIR FIFTH 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]
February 21, 2012

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

TABLE OF CONTENTS
Page
MEMORANDUM OF LAW .......................................................................................................... 1
ARGUMENT .................................................................................................................................. 4
I.

The Court Should Order Ceglia To Submit A Corrected Declaration
Identifying All Webmail Accounts He Has Used Since 2003, And Should
Authorize The Issuance of Subpoenas And Orders To Facilitate The
Acquisition Of Electronic Materials In Such Accounts. ......................................... 4

II.

The Court Should Review In Camera The Material As To Which Ceglia
Has Asserted Attorney-Client Privilege.................................................................. 8

III.

Ceglia Must Submit An Amended Declaration Identifying Jason
Holmberg And All Other Custodians Of “Lawsuit Overview,” And
Produce All Copies Of The “Lawsuit Overview” In Their Possession. ............... 10

CONCLUSION ............................................................................................................................. 16

MEMORANDUM OF LAW
Paul Ceglia’s non-compliance with this Court’s discovery orders has necessitated four
prior motions to compel, see Doc. Nos. 95, 129, 155, 245, each of which this Court has granted,
see Doc. Nos. 107, 117, 152, 208, 272. It has also necessitated this Court’s grant of sanctions —
the Court recently ordered Ceglia to pay both a $5,000 fine for “obstruction” and Defendants’
attorney’s fees totaling $76,776.70 and counting. See Doc. Nos. 283, 292. Since the Court
granted Defendants’ Fourth Motion to Compel, Defendants have discovered additional egregious
failures by Ceglia to comply with explicit Court directives.
First, Ceglia remains in violation of this Court’s August 18 and November 3, 2011 Orders
directing him to identify all the web-based email accounts he has used since 2003. As discussed
below, a recent production of electronic material by Stroz Friedberg establishes that Ceglia has
been concealing from the Court and Defendants at least four such webmail accounts, one of
which — an account named [e-mail] — he appears to have created for use in
connection with this lawsuit. These cannot possibly be inadvertent oversights. Ceglia has since
signed consent forms authorizing Stroz Friedberg to acquire and inspect the contents of those
four accounts, but Defendants still need this Court to authorize the issuance of subpoenas on the
webmail providers and to order production, to facilitate such acquisitions. Caught red-handed,
Ceglia does not object to those requests, nor could he. Finally, Ceglia must submit a corrected
declaration that identifies all webmail accounts he has used since 2003, including but not limited
to the four accounts discussed below, and explains his failure to disclose any accounts in his
previous declarations.
Second, when Stroz Friedberg made the recent production disclosing the concealed
webmail accounts, it withheld fifty-one (51) documents that Ceglia claimed to be protected by

1

the attorney-client privilege. But based on the privilege log’s descriptions, at least eleven of
Ceglia’s assertions of attorney-client privilege are abusive and unfounded. This Court should
therefore order Ceglia to produce those eleven documents for in camera inspection and to satisfy
his burden of justifying his privilege claims with competent evidence.
Third, Ceglia remains in violation of this Court’s August 18 Order directing him to
identify all of his agents who possess electronic copies of the purported Work for Hire agreement
and to produce those copies. See Doc. No. 117, ¶¶ 1–2. As the Court is aware, the “Lawsuit
Overview” document — Ceglia’s “pitch” document to help him shop his fraudulent lawsuit and
engage in immediate “settlement negotiations” with Defendants — contains a copy of that
agreement and is responsive to the Court’s orders. Doc. No. 290-1. As explained below,
Defendants have recently learned that Ceglia and his lawyers have been concealing the role of a
wood pellet salesman in Pennsylvania named Jason Holmberg. Holmberg is an agent of Ceglia’s
who has been in possession of an electronic copy of the “Lawsuit Overview” document for
months, yet Ceglia concealed Holmberg’s existence and failed to produce the responsive
documents in Holmberg’s possession. Holmberg is important because he claims to have
prepared the “Lawsuit Overview” document.
Disturbingly, this claim of authorship conflicts directly with the representation that
Ceglia’s lawyer Dean Boland made to this Court during the November 2 hearing, when he told
the Court (after conferring with co-counsel Paul Argentieri) that Argentieri wrote the “Lawsuit
Overview” document, in an unsuccessful attempt to suppress this document based on a spurious
claim of attorney-client privilege. And recently, the identity of the document’s author appears to
have changed yet again: Boland suggested to Defendants that the true author of the “Lawsuit
Overview” document is neither Argentieri nor Holmberg, but a third individual whom Ceglia has

2

not yet identified. This Court should therefore order Ceglia and his agents to produce all copies
of the “Lawsuit Overview” document, including the original document from its author and
original custodian, and explain under oath who authored this document.
The Court’s expedited discovery orders — the first of which it issued nearly eight months
ago — were based on Defendants’ overwhelming initial showing that Ceglia is perpetrating a
massive litigation fraud. Defendants have since uncovered substantial evidence confirming that
fraud. Ceglia’s ongoing non-compliance, however, is intended to deny Defendants additional
corroborating evidence; his earlier concealment and spoliation of electronic storage devices,
obstruction of Defendants’ inspection of his webmail accounts, and obstruction of Defendants’
ink sampling was similarly motivated to deny Defendants access to critical evidence of Ceglia’s
fraud. Full compliance is essential to effectuate the explicit purpose of the expedited discovery
orders: to uncover all of the evidence of Ceglia’s fraud on this Court.
Although Defendants regret the need to return to the Court to seek a fifth order
compelling Ceglia’s compliance, Ceglia has left them no choice. Rather than accept the Court’s
orders and fully comply with them, Ceglia’s practice of partial compliance and hide-the-ball
continues, forcing Defendants to discover important facts literally months after they were due to
be disclosed under the Court’s prior orders. Indeed, many of the examples of Ceglia’s noncompliance involve his obstruction of time-sensitive inspections, such as Defendants’ live
webmail acquisition and ink sampling.
Accordingly, Defendants respectfully request an Order (1) authorizing Defendants to
issue subpoenas to the webmail providers listed in Ceglia’s signed consent forms and (2)
requiring Google, Inc., and any other webmail providers that need a court order, to produce the

3

contents of the accounts as authorized by the consent forms. Ceglia consents to the entry of such
an order.
In addition, Defendants respectfully request that the Court enter an order compelling
Ceglia to:
•

Comply with this Court’s Orders by identifying in a corrected declaration all webmail
accounts he has used since 2003 and explaining his failure to disclose any accounts in
his previous declarations;

•

Produce the eleven documents for in camera inspection and justify his privilege
claims over them;

•

Comply with this Court’s Orders by identifying in a corrected declaration all
custodians for the “Lawsuit Overview” document, including the original author of
that document, and explaining his failure to disclose any custodians in his previous
declarations; and

•

Produce all electronic copies of the “Lawsuit Overview” document, including the
original document from its author.
ARGUMENT

I.

The Court Should Order Ceglia To Submit A Corrected Declaration Identifying All
Webmail Accounts He Has Used Since 2003, And Should Authorize The Issuance of
Subpoenas And Orders To Facilitate The Acquisition Of Electronic Materials In
Such Accounts.
This Court’s August 18 Order granted Defendants’ motion to compel full compliance

with the Court’s initial expedited discovery order. See Doc. No. 117. It directed Ceglia to
“identify all email accounts accessible through web-based interfaces that Plaintiff has used since
2003” and to “consent to the acquisition and inspection by Stroz Friedberg of the contents of all
such accounts.” Id. ¶ 5 (emphasis added). Ceglia provided a sworn declaration on August 29,
2011, purporting to comply with the August 18 order. In that declaration, Ceglia identified only
two specific web-based email accounts — [e-mail] and [e-mail] —
as well as accounts at Adelphia and T-Mobile without specific addresses. See Doc. No. 176-1.

4

The Court’s August 18 Order also required Ceglia to provide consent forms authorizing
Stroz Friedberg to acquire and inspect the contents of his web-based email accounts. See Doc.
No. 117, ¶ 5. Ceglia failed to do so, thus violating the Court’s order and necessitating another
motion to compel by Defendants; the Court granted that motion on September 28, 2011.1 In its
November 3 Order, the Court again ordered Ceglia to consent to Stroz Friedberg’s inspection of
“all email accounts accessible through web-based interfaces that [he] has used since 2003.” Doc.
No. 208, ¶ 10 (emphasis added). Ceglia ultimately provided executed consent forms for three
webmail accounts: [e-mail], [e-mail], and [e-mail].2
After Ceglia provided the consent forms, and this Court authorized the issuance of
subpoenas to the webmail providers and ordered Google to produce the contents of the Gmail
account as authorized by the consent (see Doc. No. 273), Stroz Friedberg acquired and inspected
the contents of those webmail accounts to identify material relevant to this lawsuit. On February
1, 2012, Stroz Friedberg produced to Ceglia’s attorneys electronic material from Ceglia’s
webmail accounts that it had identified as relevant. That production was made in accordance
with the Electronic Asset Inspection Protocol (Doc. No. 85), which allows Ceglia’s attorneys to
conduct a privilege review before electronic materials are produced to Defendants. Ceglia’s
attorneys provided a privilege log to Stroz Friedberg designating fifty-one (51) documents as
privileged. See Southwell Decl., ¶ 8. On February 9, 2012, Stroz Friedberg produced to

1
The Court subsequently granted Defendants’ request for sanctions related to this particular discovery
violation. See Doc. Nos. 283, 292.
2
Carmine Ceglia, plaintiff’s father, provided an executed consent for a fourth account, [e-mail],
for which he is the registrant.

5

Defendants the relevant electronic material that Ceglia had not designated as privileged; it did
not produce the documents over which Ceglia claimed privilege.
The February 9 production contains evidence that Ceglia has willfully violated the
Court’s August 18 and November 3 Orders by concealing, for the last six months, the existence
of at least four webmail accounts that he used since 2003:
•

[e-mail]

•

[e-mail]

•

[e-mail]

•

[e-mail]

Ceglia appears to have created at least one of those accounts, [e-mail], to use
specifically in connection with this lawsuit.
Ceglia’s ongoing obstruction — in the face of repeated motions to compel — has
prejudiced Defendants by denying them access to time-sensitive electronic material that this
Court ordered Ceglia to disclose more than six months ago. Ceglia’s attorney Dean Boland
appears to have recognized as much. After learning that his client had failed to identify webmail
accounts in yet another violation of this Court’s Orders, he sent an email to Defendants’
attorneys offering to provide signed consent forms for two of the four undisclosed accounts:
[e-mail] and [e-mail]. See Southwell Decl., Ex. B. He did not,
however, mention or offer Ceglia’s consent to the inspection of the [e-mail]
or [e-mail] accounts.
Defendants thus sent a letter to Boland on February 16, 2012, demanding that Ceglia
provide executed consent forms for all of the webmail accounts he has used since 2003,
including but not limited to the four accounts mentioned above. See Southwell Decl., Ex. C.
Defendants also sought Ceglia’s consent to a Court order and/or authorization to issue additional
6

subpoenas to the webmail providers for the four concealed webmail accounts, in order to help
ensure that Stroz Friedberg could timely acquire their contents. See id.
On February 17, 2012, Boland provided signed consent forms for the four webmail
accounts listed above. See Southwell Decl., ¶ 13. In a separate February 17 email, he stated that
Ceglia “consent[s] to a subpoena/court order enabling Defendants to have their electronic
discovery firm acquire data related to the” four concealed webmail accounts. Southwell Decl.,
Ex. D.
In light of Boland’s February 17 emails, Defendants respectfully request an Order from
this Court (1) authorizing Defendants to issue subpoenas to the webmail providers of the four
concealed accounts and (2) requiring Google, Inc., and any other webmail providers that need a
court order, to produce the contents of the two concealed Gmail accounts as authorized by the
consent forms. Ceglia consents to these two forms of relief.
Finally, in order to comply with this Court’s August 18 and November 3 Orders, Ceglia
must provide a corrected declaration regarding his webmail accounts. In response to the Court’s
prior orders to identify all webmail accounts that he had used since 2003, and under penalty of
perjury, Ceglia initially identified only four accounts. See Doc. No. 176-1. Because of
discovery Defendants have obtained pursuant to this Court’s expedited discovery orders,
Ceglia’s sworn declaration has now been revealed to be false. Thus, the Court should order
Ceglia to finally do what it ordered him to do more than six months ago: to accurately identify in
one declaration all webmail accounts that he has used since 2003 and to explain his failure to
previously disclose any accounts in his previous declarations.

7

II.

The Court Should Review In Camera The Material As To Which Ceglia Has
Asserted Attorney-Client Privilege.
Ceglia’s history of improperly designating documents as privileged is well established.

See Doc. Nos. 208, ¶¶ 14–15 (Order overruling privilege designations), 107. Ceglia’s most
recent privilege log suggests that his pattern of improper designations continues. In the log,
Ceglia claims privilege over communications with non-lawyers or with lawyers with whom he
had no known contemporaneous attorney-client relationship, or that do not obviously involve the
provision of legal advice. See Southwell Decl., Ex. A.
Defendants challenged Ceglia’s privilege claims over both categories of documents in
their February 16 letter to Boland and demanded that Ceglia either withdraw his designations or
provide an evidentiary showing justifying them. See Southwell Decl., Ex. C. Boland did not
provide a substantive response to this challenge by February 20th, the date by which Defendants
asked for a response. In light of Ceglia’s failure to justify those privilege claims in response to
Defendants’ letter, the Court should order Ceglia to produce the documents identified below for
in camera inspection and to file with the Court evidentiary support justifying his privilege
claims.
First, Ceglia asserts privilege over communications with Jessica Ceglia and Jason
Holmberg — third-party non-attorneys. See Southwell Decl., Ex. A, Item Nos. 337, 360, 379.
Such communications cannot be protected by the attorney-client privilege; as this Court has
already correctly held, the privilege applies only to “confidential communications with an
attorney for the purpose of seeking legal advice or services.” Doc. No. 107, at 2 (citing United
States v. Int’l Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997)) (emphasis added). Indeed,
the Court has already rejected Ceglia’s assertion of privilege over documents sent by Ms. Ceglia.
See Doc. No. 208, ¶ 15. Therefore, Ceglia’s designation of Item No. 337 (an attachment in a

8

February 24, 2011 email from Ms. Ceglia to the plaintiff) as attorney work product is improper;
the disclosure of that document to a third-party who was not an agent of the attorney waived any
privilege that may have previously attached. See, e.g., U.S. Postal Serv. v. Phelps Dodge
Refining Corp., 852 F. Supp. 156, 162 (E.D.N.Y. 1994) (“[T]he fact that the document is sent to
a third party ordinarily removes the cloak of confidentiality necessary for protection under the
attorney-client privilege.”).
Ceglia’s assertion of privilege over emails sent to Holmberg is also improper. Southwell
Decl., Ex. A, Item Nos. 360, 379. Holmberg is apparently the President and Owner of PA Pellets
(LLC), a manufacturer of wood fuel pellets in Pennsylvania. He is not a lawyer. Furthermore, in
an unrelated production, Argentieri himself provided to Defendants a different email sent from
Holmberg to Ceglia. See Southwell Decl., ¶ 20; see also infra at 12. Thus, even if such
privilege claims for communications with Holmberg were proper — and they are not — Ceglia
has waived the privilege. Ceglia’s assertions of privilege over Item Nos. 360 (March 17, 2011
email from plaintiff to Holmberg) and 379 (email from Argentieri to plaintiff containing emails
with, inter alia, Holmberg) should be rejected.
Second, Ceglia asserts privilege over eight communications with attorneys in
circumstances that cannot reasonably give rise to a privileged communication. See Southwell
Decl., Ex. A, Item Nos. 334, 348, 373, 400, 401, 402, 403, and 405. For example, Ceglia
claimed privilege over an email sent by Jim Kole on February 15, 2007, when Kole was an
Assistant Attorney General at the Illinois Attorney General’s Office, Consumer Fraud Bureau
(and thus not a private lawyer advising Ceglia). See id., Item No. 348. Ceglia also claimed
privilege over an email sent to Argentieri that concerns “a hushmail account” — a subject that

9

does not appear to involve the provision of legal advice.3 See id., Item No. 334. Finally, Ceglia
claimed privilege over six emails sent to David Grable, an attorney at Quinn Emanuel who is not
known to have provided legal services to Ceglia in connection with this matter. See id., Item No.
373, 400, 401, 402, 403, and 405. Rather, Grable appears to be a personal relation of Jim Grable,
Ceglia’s former attorney at Connors & Vilardo, who sent three of the six emails, including the
earliest one.
As “the party asserting” the privilege, Ceglia bears the “burden of establishing [its]
existence.” Teamsters, 119 F.3d at 214; see also Priest v. Hennessy, 409 N.E.2d 983, 986 (N.Y.
1980) (“[T]he burden of proving each element of the privilege rests upon the party asserting it.”).
“The burden cannot be met by ‘mere conclusory or ipse dixit assertions’ in unsworn papers
authored by attorneys.” Allied Irish Banks, P.L.C. v. Bank of Am., N.A., 252 F.R.D. 163, 168
(S.D.N.Y. 2008) (quoting von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 147 (2d Cir.
1987)) (other internal quotation marks omitted). This Court should hold Ceglia to his burden of
providing competent evidence to justify his privilege claims over those documents.
III.

Ceglia Must Submit An Amended Declaration Identifying Jason Holmberg And All
Other Custodians Of “Lawsuit Overview,” And Produce All Copies Of The
“Lawsuit Overview” In Their Possession.
The Court’s August 18 Order required Ceglia to submit a supplemental declaration in

which he would
identify, by name and location, each of the following files . . . : (A) the electronic
copies or images of the purported contract attached to any complaint in this
action; [and] (B) all electronic versions or purported versions of any contract by
and among Defendant Zuckerberg, Plaintiff, and/or other persons associated with
3
Hushmail is a “secure web-based free email service” that “looks and feels just like any other web-mail site,
but adds strong encryption to your emails to protect your secrets from prying eyes.” Hushmail.com: About,
available at http://www.hushmail.com/about/ (last visited February 21, 2012).

10

StreetFax (‘Contract’), including the electronic copies or images of any Contract
in the possession, custody, or control of Plaintiff’s attorneys, experts, or other
agents . . . .
Doc. No. 117, ¶ 2. Ceglia submitted a supplemental declaration pursuant to this Order. See Doc.
No. 176-1. In it, he identified a document entitled “Lawsuit Overview.pdf” as responsive to
category 2(A). See Doc. No. 176-1, ¶ 12. The “Lawsuit Overview” document was prepared as a
“pitch” document to drum up interest within the bar and find a lawyer who might be willing to
represent Ceglia. The document includes a copy of the purported Work for Hire agreement,
states that other lawsuits against Facebook and Zuckerberg allegedly settled for large sums of
money, and identifies as its central objective to retain a law firm that will immediately enter into
“settlement negotiations.” See Doc. No. 290-1.
Ceglia attempted to shield the “Lawsuit Overview” document from discovery. He argued
that it was protected by the attorney-client privilege and should not be produced in full to
Defendants. See Doc. No. 176-3, ¶ 12(a)(ii). Defendants challenged Ceglia’s designation of
“Lawsuit Overview.pdf” as privileged. See Doc. No. 155. In response, the Court ordered Ceglia
to produce the document for in camera inspection, see Doc. No. 167, and further directed him to
cite caselaw supporting his designation. The issue was fully briefed. See Doc. Nos. 177, 181.
The Court heard argument on the privilege question during the November 2 hearing on
Defendants’ Third Motion to Compel. During that hearing, in an effort to justify Ceglia’s
privilege designation, Ceglia’s attorney Boland represented to the Court that his co-counsel
Argentieri wrote the “Lawsuit Overview” document:
I can just represent to you as an add[-]on that Mr. Argentier[i] is here today and
he would be prepared to [swear], as an officer of the court, that he authored that
document and analyzed Mr. Ceglia’s case and that analysis is reflected in the
document. I’ll offer that. If that is insufficient, then we will respect the Court’s
order.

11

Southwell Decl., Ex. F (Hr’g Tr. 9:22–10:3 (Nov. 2, 2011)) (emphasis added). The Court
rejected Ceglia’s privilege claim and ordered Ceglia to produce “Lawsuit Overview.pdf” within
five days. See id. at 9:18–21; id. at 10:4–11:15. The Court memorialized its oral ruling in its
November 3 written Order, which authorized Stroz Friedberg to acquire from each of Ceglia’s
attorneys, experts, and agents all electronic files previously produced or to be produced pursuant
to the Court’s expedited discovery orders, including “Lawsuit Overview.pdf,” in native-file
format with metadata intact. See Doc. No. 208, ¶¶ 11, 14.
Defendants demanded production of the “Lawsuit Overview.pdf” document in a
November 25, 2011 letter to Argentieri, noting that in light of Argentieri’s “representation to the
Court that you personally wrote the document, we find it implausible that it no longer remains in
your possession.” Southwell Decl., Ex. G at 1. The next day, Argentieri offered to have his
information technology contact Ed Flaitz provide a copy of “Lawsuit Overview.pdf” to Stroz.
See Southwell Decl., Ex. I at 1–2. Defendants accepted this offer as an accommodation. See id.
at 2.
After a number of delays due to Argentieri’s not staffing his office, Argentieri finally
produced his native-file copy of “Lawsuit Overview.pdf” on December 16, 2011. But the native
file produced was not a document written by Argentieri. Instead, “Lawsuit Overview.pdf” was
an attachment to an email sent by one Jason Holmberg to Ceglia and Argentieri on Sunday,
March 6, 2011, at 11:03 PM. See Southwell Decl., Ex. H. In his email sending “Lawsuit
Overview.pdf” to Ceglia and Argentieri, Holmberg wrote: “Paul, Attached is the dossier I put
together to present the case to law firms. Let me know if you’d like to change it at all.” Id.
Ceglia had never before revealed the existence of Holmberg and his attorneys did not disclose
Holmberg’s role to the Court during the November 2nd argument.

12

Defendants sent a letter to Boland on January 26, 2012, describing the deficiencies in
Ceglia’s August 29 Declaration and the inconsistency between Holmberg’s and Argentieri’s
claims of authorship. See Southwell Decl., Ex. I. Defendants asked Ceglia to provide
immediately a corrected declaration and to produce all copies of the “Lawsuit Overview”
document, including those in Holmberg’s possession. See id. at 3.
Boland responded to Defendants’ letter on February 2, 2012. Boland stated that he had
“communicated with Holmberg and he has indicated he has one electronic copy of the Lawsuit
Overview.pdf document that he [Holmberg] retained after receiving it via email.” See Southwell
Decl., Ex. J. According to Boland, Holmberg also “indicated he has one copy of a contract
between my client and your client, the same contract we have provided you on numerous
occasions.” Id. Boland assured Defendants that “Holmberg will burn those two items to a CD
with all meta-data intact and send that CD directly to Bryan Rose at Stroz [Friedberg].” Id.
Stroz Friedberg received a CD from Holmberg on February 7, 2012. Boland, however, did not
provide a supplemental declaration that corrected Ceglia’s prior failure to identify Holmberg as a
custodian of the purported Work for Hire contract.
Defendants wrote to Boland again. On February 8, 2102, they sent a letter pointing out
that because Ceglia’s August 29 Declaration did not identify Holmberg as a custodian of an
electronic copy of the Work for Hire agreement, that declaration was false. See Southwell Decl.,
Ex. K. Ceglia thus remained in non-compliance with the Court’s August 18 Order, which
requires him “to identify, by name and location, each” electronic copy of the purported the Work
for Hire agreement. See id.
In that same February 8 letter, Defendants also explained that Boland’s February 2 email
suggests the existence of yet another unidentified custodian of the purported Work for Hire

13

agreement. Boland’s email claims that Holmberg had one electronic copy of the “Lawsuit
Overview” document “that he retained after receiving it via email.” Southwell Decl., Ex. J.
Boland’s description of how Holmberg obtained the document conflicts with Holmberg’s email
transmitting it to Ceglia and Argentieri, which states, “Attached is the dossier I [Holmberg] put
together to present the case to law firms.” Southwell Decl., Ex. H (emphasis added).
Defendants pointed out that inconsistency and the resulting suggestion that a third unidentified
person actually wrote the document. See Southwell Decl., Ex. K. Defendants again requested
that Ceglia immediately comply with his obligations under the August 18 Order to identify in a
declaration all persons in possession of the “Lawsuit Overview” document — including
Holmberg and the original author of “Lawsuit Overview,” if that was someone other than
Holmberg — and to produce “Lawsuit Overview” from its original author and all subsequent
custodians. See id.
Boland responded on February 10, 2012, stating that Ceglia had “no personal knowledge
regarding what files Jason Holmberg has retained or is retaining regarding this matter,” and thus
“could not produce a declaration ‘from personal knowledge.’” Southwell Decl., Ex. L. In their
February 16 letter in response, Defendants reiterated their request for a supplemental declaration
that complies with the Court’s August 18 Order. See Southwell Decl., Ex. C, at 3–4. Defendants
specifically described Ceglia’s obligation to inform himself of facts sufficient to provide a
supplemental declaration compliant with the Court’s orders. See id. Boland’s February 16 email
response again asserted that Ceglia lacked personal knowledge of the files in Holmberg’s
possession; he did not acknowledge, however, Defendants’ contention that Ceglia must obtain
such knowledge to comply with the order. See Southwell Decl., Ex. M.

14

As this discussion makes clear, Defendants have asked Ceglia three times to provide a
corrected Declaration identifying Holmberg and all other custodians of the “Lawsuit Overview”
document as required by the August 18 Order. Ceglia has refused all three requests. Thus,
nothing short of an order compelling Ceglia to immediately produce a corrected declaration
identifying all custodians of “Lawsuit Overview,” and to produce all copies of the “Lawsuit
Overview” document in their possession, will bring about his compliance with the August 18
Order. Defendants respectfully request that the Court enter such an order and, in light of these
circumstances, order that Ceglia also explain in his corrected declaration who authored the
“Lawsuit Overview” document.
In addition, the revelation that Holmberg or another unidentified third party was the true
author of the “Lawsuit Overview” document also establishes that Argentieri and Boland made
misrepresentations to the Court when they stated that Argentieri was the author of the document.
Their motive was clear: they wanted to conceal the document and therefore made the false claim
that it was authored by Argentieri in order to attempt to justify Ceglia’s unfounded assertion of
attorney-client privilege. This could not have been a good-faith misunderstanding. To the
contrary, it appears to have been an intentional effort to mislead the Court. Compare Southwell
Decl., Ex. H (Holmberg: “Attached is the dossier I put together to present the case to law
firms.”), with Southwell Decl., Ex. F (Boland: “Mr. Argentier[i] is here today and he would be
prepared to, as an officer of the court, that he authored that document”). Indeed, the fact that the
document was prepared by a nonlawyer means that there never was a colorable basis to invoke
the attorney-client privilege in the first place.

15

CONCLUSION
This Court should enter an order authorizing Defendants to issue subpoenas to the
webmail providers of the four concealed accounts, and order Google, Inc., and any other
webmail providers that need a court order, to produce the contents of those accounts as
authorized by the consent forms. Ceglia consents to such an order.
The Court also should order Ceglia to comply with the August 18 and November 3
Orders by identifying in a supplemental sworn declaration all webmail accounts he has used
since 2003 and explaining his failure to disclose any accounts in his previous declarations.
Additionally, the Court should inspect in camera the eleven cited documents over which
Ceglia claims privilege, and require him to bear his burden of justifying his privilege claims by
competent evidence.
The Court also should compel Ceglia to file an amended declaration (a) identifying
Holmberg as a custodian of the purported Work for Hire agreement in Holmberg’s possession, as
required by the August 18 Order, (b) identifying in that amended declaration all other custodians
of the purported Work for Hire agreement, including the original author of “Lawsuit Overview,”
and (c) explaining his failure to disclose any custodians in his previous declarations. And the
Court should compel Ceglia to produce all copies of the “Lawsuit Overview” document,
including the original document prepared by its true author.
Finally, this Court should award Defendants all other relief to which they may be entitled.

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Dated:

New York, New York
February 21, 2012
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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